Sullivan v. Superior Court

WORKS, J.

Petitioner presented his petition asking that respondents be ordered to enter a final decree in an action for divorce between petitioner and his wife which is pend

[533]

ing in respondent court, and our alternative writ of mandate went forth. Respondents make return by demurrer to the petition.

The petition alleges that on September 27, 1922, petitioner and his wife entered into a written agreement for the settlement of their property rights; that the agreement provided, among other things, that petitioner " shall cause to be conveyed unto” the wife certain particularly described real property in Los Angeles County, and “shall further cause to be erected and constructed upon said real property a dwelling-house of five rooms”; that theretofore, on July 20, 1922, petitioner commenced in respondent court an action against his wife for divorce on the ground of desertion; that on April 5, 1923, respondent court rendered its interlocutory decree of divorce in that action, which decree adjudged in part “that the plaintiff shall cause to be conveyed unto the defendant” the real property already mentioned, and that “said plaintiff shall further cause to be erected and constructed upon said real property a dwelling-house of five rooms”; that “thereafter and on the seventeenth day of April, 1924, more than one year having elapsed since the entry of the interlocutory decree and no appeal having been taken from said judgment and no motion for a new trial having been made, and the action not having been dismissed, this petitioner made application for a final decree; that thereupon . . . the defendant in the said action for divorce, filed therein her petition based upon .her affidavit . . . asking that a final decree be denied this petitioner in that he was in contempt of court, having failed to comply with the terms of the aforementioned interlocutory decree in that he had failed ... to convey unto said defendant the aforementioned property and had further failed to erect thereon a house in accordance with the terms of said interlocutory decree”; that thereafter, on May 22, 1924, before respondent judge, evidence was adduced in support of the last mentioned petition and “the court after considering all testimony found that this petitioner . . . had not complied with the order of the court ... in that he had not deeded said land” to his wife “and that he had further not erected thereon a house as per the said interlocutory decree”; that at said hearing petitioner showed by “uncontradicted testimony that on account of financial reasons he was unable to comply with the order of the court in the building of