Suttman v. Superior Court

ANGELLOTTI, C. J.

This is an application for a writ of review, the object being to obtain the annulment of an order of the superior court, purporting to vacate a previous order which purported to vacate an interlocutory judgment previously given in a divorce action, declaring the plaintiff therein to be entitled to a divorce.

The action was one in which defendant husband had failed to appear, and his default had been entered. The interlocutory judgment was regularly given and entered. Some three months thereafter the plaintiff wife asked the court to make its order setting aside the interlocutory judgment, her application stating simply that she “is desirous of setting aside the interlocutory decree, ’ ’ etc., and not in any sense being an application for relief under section 473 of the Code of Civil Procedure. On October 26, 1916, the superior court made its order purporting to grant the application and to vacate, annul, and set aside such judgment. All this was done without notice to or consent of the defendant husband. On December 23, 1916, the superior court made an order on the application of the defendant husband vacating, annulling, and setting aside the order of October 26, 1916. The last-named order is the one here sought to be reviewed.

We are satisfied that the order of October 26, 1916, was in excess of the jurisdiction of the court. In view of our statutory provisions the interlocutory judgment provided for by section 131 of the Civil Code, is, when regularly entered, subject to be modified or vacated only in some way provided by law for the modification or vacating of final judgments. The character of such an interlocutory judgment in this regard is fully shown by what is said in

Claudius

v.

Melvin,

146 Cal. 257, [79 Pac. 897], It is final except against such attack as is expressly authorized by statute. It is subject to be vacated on appeal, or on motion for a new trial, or by proceedings under section 473 of the Code of Civil Procedure

(Claudius

v.

Melvin,

146 Cal. 257, [79 Pac. 897], or in any other way that may be expressly authorized for the review of final judgments. There is no statutory provision authorizing the superior court to vacate a valid interlocutory judgment