Vosburg v. Vosburg

McFARLAND, J.

This is an appeal by defendant from an order of the superior court dated July 7, 1900, entered in the judgment-book August 4, 1900, modifying and changing the judgment which had theretofore been rendered in the case

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so far as said judgment fixed the care and custody of the minor children of the parties. Defendant also appeals from a minute order of the same date and to the same effect as the one above mentioned; but the two appeals are substantially the same.

The action was commenced November 12,1898, by the plaintiff to procure a divorce from her husband, the defendant, and the custody of the three minor children of the parties, Royden, Keith, and Murray. The defendant appeared and answered, and afterwards the case came regularly on to be heard, and was tried, and the court, on August 31, 1899, rendered a judgment granting the plaintiff a divorce as prayed for, and decreeing that, with some conditions mentioned, plaintiff should have the custody of the two children Keith and Murray, and that defendant should have the custody of the child Royden. From this judgment, and from the whole of it, defendant appealed to this court, and gave the undertakings on appeal necessary to the stay of proceedings provided for in section 946 of the Code of Civil Procedure. Afterwards, on July 7,1900, and while the said appeal was pending, the court, on petition of plaintiff, made an order which materially modified and changed that part of the judgment which decreed the custody of the children as above stated, and, among other things, took away the custody of the child Royden from the defendant and gave it to the plaintiff. From this latter order defendant took an appeal to this court, and this latter appeal is the one now before it.

Appellant contends for a reversal of the order upon several grounds, but under our view of the case only one of those grounds need be considered. The contention which must be sustained is, that while the appeal was pending from the original judgment the court had no jurisdiction to modify or change it.

Under that part of the Code of Civil Procedure which deals with appeals, and which, under the authorities, governs the question here involved, the contention of appellant is clearly maintainable. Section 946 of the Code of Civil Procedure provides that “whenever an appeal is perfected, as provided in the foregoing sections of this chapter, it stays all further proceedings in the court below upon the judgment or order appealed from,