Newell v. Superior Court

CONREY, P. J.

The petitioner has applied to this court for a writ of mandate to compel the entry of a final decree of divorce in an action wherein Kate E. Newell is plaintiff and the petitioner, William D. Newell, is defendant. On the

[344]

eighteenth day of November, 1912, in the superior court. of Los Angeles County, an interlocutory judgment was entered in said action whereby it was determined that the plaintiff was entitled to a divorce and it was ordered that the defendant pay to the plaintiff a certain monthly allowance for her maintenance and support until the further order of the court. Immediately thereafter the defendant appealed to the supreme court from that portion of the interlocutory decree which provided for the maintenance and support of the plaintiff. That appeal is pending in this court pursuant to an order of transfer from the supreme court.

In response to an alternative writ issued in this proceeding, the respondent judge of the superior court states that, on the thirtieth day of November, 1914, he denied the motion of petitioner for entry of a final decree of divorce in said action and that such denial was on the ground that an appeal from the interlocutory decree of divorce was at that time pending and undetermined. It is settled that after the expiration of a year from the entry of the interlocutory decree in a divorce action, and where no appeal has been taken, the writ of mandate may issue at the instance of the plaintiff to require that the court grant the final decree.

(Claudius

v.

Melvin,

146 Cal. 257, [79 Pac. 897].) For the purposes of this decision we will assume that the same rule exists in favor of the defendant against whom the decree of divorce has been granted; although it is somewhat anomalous that the wrongdoer in an action in equity should be permitted to demand affirmative relief and compel the court to visit upon him the legal consequences of his wrongful acts. It is nevertheless true that the code has provided that the final decree may be entered by the court “on motion of either party, or upon its own motion.” (Civ. Code, sec. 132.) But it is also provided in the same section that “if any appeal is taken from the interlocutory judgment or motion for a new trial made, final judgment shall not be entered until such motion or appeal has been finally disposed of, nor then, if the motion has been granted or judgment reversed. ’ ’