Smith v. Superior Court

THE COURT.

This is a petition for a writ of mandate requiring the superior court to enter a final decree of divorce.

In an action by petitioner against her husband the court heard the evidence, and an order was entered in its minutes reciting the submission and consideration of the cause, and adding: “It is ordered by the court that an interlocutory decree of divorce be entered herein in favor of the plaintiff on grounds of defendant’s willful neglect and desertion.” Nothing further was done. No findings were filed and no decree ever entered in the judgment-book.

More than a year after the entry in the court minutes above quoted, petitioner, upon proper notice, moved the court to enter a final decree, which motion was denied.

These being the facts, the petition for the writ of mandate must be denied. We hold that upon the proper construction of section 132 of the Civil Code, as recently amended, an interlocutory decree of divorce must be entered in the judgment-book one year before a final decree can be granted, and under section 131 the right of appeal from the interlocutory decree continues for six months after such entry.

Writ denied.