Bennett v. Southard

By the Court, Crockett, J.: The only question presented by the record in this case is, whether or not, in an action for divorce brought by the wife, the Judge of the Court in which the action is pending has jurisdiction, pending the action, to hear and determine, in the District Court of an adjoining county of the same district, an application by the wife for an allowance pendente lite, and for the care and custody of .the children of the marriage.

Section seven of the Act concerning divorces provides explicitly that the Court in which the action is pending may make an order for the support of the wife, and the maintenance and education of the children, during the progress of the action.

Section five hundred and sixteen of the Practice Act provides that “motions shall be made in the county in which the action is brought, or in an adjoining county in the same district.”

An order for alimony and for the custody of the children pendente lite can only be made by the Court in which the action for divorce is pending. The statute concerning divorces does not authorize the Judge at Chambers to make the order, and requires the application to be made to the Court.

Section five hundred and sixteen of the Practice Act applies only to such motions as the Judge is authorized to hear at Chambers, and we have several times defined what these motions are. (Bond v. Pacheco, 30 Cal. 532; Larco v. Casaneuava, 30 Cal. 564.)

If the practice adopted in this case were to prevail, we should have different branches of the same action pending in two Courts at the same time, which would lead to inextricable confusion in the trial of causes.

Our conclusion is, that the District Court of Mendocino County had no jurisdiction of the motion; and the order of that Court, entered on the 20th day of July, 1866, awarding [692]to the plaintiff, Susan Bennett, the custody of the two children, and directing the defendant, Sanford Bennett, to pay to the plaintiff one thousand dollars, should be vacated and set aside; and it is so ordered.