Keating v. Keating

SHAW, J.

This was an action for divorce wherein the defendant, among other grounds therefor, was charged with committing adultery with Vinnette Lohman, who filed an answer denying the charge. The court found the fact as alleged, and on August 25, 1911, rendered a decree granting the divorce. On September 6th the co-respondent served and filed her notice of intention to move for a new trial upon the grounds of insufficiency of the evidence to justify the decision, errors in law occurring at the trial, and that the decision is against law, which motion it was stated in the notice would be made upon a statement of the case. On September 14th, and within the ten days allowed by law for the preparation of such statement, co-respondent procured from the judge of the court an order giving her an additional period of thirty days within which to prepare her statement on motion for new trial, to the making of which order plaintiff herein did not consent. The statement was not prepared within the extension of time so granted, and on October 16th co-respondent procured a second order extending the time for an additional

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period of thirty days, to the making of which order plaintiff did not consent. While this order so made on October 16th was void, for the reason that the power of the court was exhausted in making the first order extending the time for a period of thirty days (Code Civ. Proc., sec. 1054;

Bunnel

v.

Stockton,

83 Cal. 319, [23 Pac. 301];

Gibson

v.

Superior Court,

83 Cal. 643, [24 Pac. 152]), nevertheless, since the co-respondent did not prepare nor present such statement within the time so specified therein, or at all, the fact that the order made was in excess of the court’s jurisdiction is of no importance.

On November 16th defendant in said action served upon plaintiff his statement on motion for a new trial, and thereafter, to wit: on November 28th, co-respondent served upon plaintiff a notice that, on December 4th, she would move the court for an order permitting her to adopt as her own the proposed statement of defendant on motion for a new trial, and have the same considered as served and filed as her proposed statement of the case in support of her motion, and that the order be made as of the date of the filing by defendant of such statement. In support of this motion she filed affidavits of her attorney and that of defendant’s attorney, to the effect that the attorney for co-respondent was for several days, extending from November 6th, engaged in the trial of another case, and on November 8th, finding that the trial of such case would take more time than anticipated, he made an agreement with defendant’s attorney, who was preparing his (defendant’s) statement, that the same should be signed, served, and used for both defendant and co-respondent in support of their respective motions; that defendant’s attorney was likewise busy with other matters and assigned the preparation, service, and filing of the statement to another attorney, without telling him of the agreement so made, who in ignorance thereof served and filed the same as a statement in support of the motion for defendant alone. 'This motion was duly presented and by the court denied, but no record of such order was at the time entered. Co-respondent then applied to the court for permission to renew her said motion, which application being granted, she, on February 5th, moved the court, as in the first motion made; whereupon plaintiff’s attorney objected to the granting of the same upon the grounds that the court