Yusuke Takehata v. Superior Court

BARNARD, P. J.

This is an application for a writ of mandate to compel the respondent court and judge to proceed with the trial of an action for annulment of marriage, in which the petitioner is the plaintiff. When the action came on for trial the court refused to proceed with the same until such time as petitioner complied with an order previously made requiring him to pay to the defendant the sum of $30 per month as alimony

pendente lite,

with the further sum of $15 for court costs incurred by the defendant. In this previous"order the question of attorney’s fees had been reserved until the hearing of the case on its merits. It appears from the petition that the respondent court refused to hear any testimony with reference to the petitioner’s ability to meet the payments required by the prior order, and that the petitioner has not been found to be in contempt by reason of his failure to make the payments referred to.

The only case cited by respondents is

Farrar

v.

Farrar,

45 Cal. App. 584 [188 Pac. 289]. While the question now before us was not involved in that case, in passing upon an appeal from an order requiring a husband to pay a certain monthly sum for the support of his wife pending an appeal, together with a further sum for printing her brief on appeal, the statement is made that where an action is brought by a husband, a court will refuse to proceed therewith until compliance is made with an order to pay temporary alimony

[135]

and the expense of defending the suit. In support thereof the court cited the case of

Winter

v.

Superior Court,

70 Cal. 295 [11 Pac. 633]. In the last-named case there was involved only an order for the payment of counsel fees to enable a wife to make her defense, and it was held that the trial court did not abuse its discretion in refusing to set the case for trial until such order was complied with or set aside. The facts in the case of