Gould v. Superior Court

The petitioner, as the special administrator of the estate of Frank H. Gould, deceased, seeks by prohibition to prevent the superior court and the Honorable E. P. Shortall, one of its judges in San Francisco, from setting aside a final decree of divorce entered after the death of petitioner's intestate.

In his lifetime Frank H. Gould was the husband of Nettie Gould. There was one child of the marriage, a daughter who was between sixteen and seventeen years old in October, 1916, when the husband sued for divorce. After answer and cross-complaint the trial resulted in an interlocutory decree of divorce in favor of the wife. It was dated January 19, 1918. The court found there was community property which except as hereinafter stated was not described in *Page 199 the findings. The divorce was granted on the ground of willful desertion by the husband. The decree recited that the parties had agreed in open court "to the division of the community property and the provision for alimony as hereinafter provided." The provisions referred to were that the husband pay the wife as permanent alimony and for her support the sum of seventy-five dollars per month, commencing on January 21, 1918; that he should pay her immediately two thousand five hundred dollars in cash; that out of the community property and the homestead there be assigned and allotted to the wife a certain lot of land in San Francisco, together with the dwelling-house and other improvements thereon and all the furniture and personal property contained therein, "the same to be her sole and separate property and estate." It was ordered that the plaintiff pay and discharge a certain encumbrance upon said real property within three years, and in the interim that he should pay all interest and other charges secured by mortgage, "it being the true intent of this decree to award said real property to the defendant, Nettie Gould, free and clear of encumbrances, but to allow the said Frank H. Gould the said period of three years from and after date hereof within which to discharge the said lien or encumbrance." All other property of the community was expressly assigned and allotted to the plaintiff free and clear of all claim of the defendant. It was further decreed that each of the parties respectively should immediately execute and deliver to the other quitclaim deeds conveying the respective property, and providing that if either party should fail or omit to make the deed within a period of ten days after the date of the decree, the clerk of the court execute the deed to carry the decree into effect. The last clause of the decree provided that upon the expiration of one year final judgment granting the defendant a divorce, "and providing for the permanent alimony and support of defendant and the division and allotment of the community property, and other relief, as hereinbefore in this interlocutory decree provided, be entered herein." The decree was recorded on January 21, 1918.