O'Connell v. O'Connell

California Supreme Court Apr 15, 1927 No. Docket No. S.F. 12168.Published

Before: Richards

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Holding. The court denied the motion to dismiss the appeal from the judgment, granted the motion to dismiss the appeal from the order denying a new trial because it was not an appealable order, and denied the motion to dismiss the appeal regarding the bill of exceptions due to a lack of record evidence of such proceedings.

Issues

Whether the appeal from the judgment in the second action should be dismissed.
Whether the appeal from the order denying a motion for a new trial should be dismissed.
Whether the appeal from an order dismissing proceedings for a bill of exceptions should be dismissed.

Disposition. Affirmed in part, dismissed in part, and denied in part.

Quotations verified verbatim against the opinion

“The motion to dismiss the appeal from the judgment and decree rendered in said second action must be and is hereby denied”

“The respondent’s motion to dismiss the appeal from the order denying the defendant’s motion for a new trial in said action must be and is hereby granted for the reason that the said order was not an appeaffible order.”

[49]

RICHARDS, J.

The questions herein presented arise upon the motion of the respondent to dismiss certain appeals. The record contains the papers and proceedings in two separate actions, which are themselves so entangled and which are so much further entangled in the transcript herein as to require some orderly statement of the sequences of this litigation in order to arrive at a proper determination of the motions to dismiss the several appeals referred to in said transcript.

Anna M. O’Connell commenced an action for divorce against Daniel O’Connell on February 29, 1922, in the superior court of the city and county of San Francisco. The defendant appeared in said action by demurrer on June 3, 1922, and upon the overruling of the same on September 8, 1922, he filed his answer on October 7, 1922, denying the allegations of the plaintiff’s complaint and also setting forth certain affirmative defenses thereto. The defendant also at the same time presented a cross-complaint, wherein he prayed for a divorce from his wife, and also asked for certain other affirmative relief relating to property of the parties in said action. The plaintiff responded to said cross-complaint in an answer filed October 26, 1922, denying the averments of the several counts therein and reiterating her prayer for the granting of a decree of divorce in her favor. A trial was had upon the issues thus presented, wherein, as it appears from the recitals of the interlocutory decree, neither the plaintiff and cross-defendant nor her attorneys appeared, and wherein the court, after taking evidence offered on behalf of the defendant and cross-plaintiff, made its findings of fact and conclusions of law, and thereupon and on June 3, 1924, made and entered its interlocutory decree of divorce in favor of the defendant and upon his cross-complaint. Thereafter and on May 20, 1925, an order was made by the trial court setting aside and vacating said interlocutory decree of divorce upon the agreement in writing of the parties to that effect as recited in said order. Thereafter and on June 5, 1925, the defendant and cross-plaintiff gave notice of a motion to set aside and vacate the aforesaid order, which motion was based upon the latter’s alleged rescission of the agreement upon which said order had been entered. He also in the

[50]

O'Connell v. O'Connell

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RICHARDS, J.

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