Brown v. Brown

CRAIL, P. J. This is an appeal from an order of the superior court denying appellant’s motion for an order to vacate and set aside a judgment entered against him on December 9, 1936, and is based upon the contention that the lower court did not have jurisdiction over the subject matter embraced within the first cause of action of the complaint for the reason that said first cause of action was founded exclusively upon certain express provisions of an instrument dated [638]February 1, 1919, which had theretofore been adjudged to be illegal and void.

It appears from the record that the plaintiff commenced an action in March, 1932, against this defendant upon a certain property settlement agreement which was entered into between the parties on February 1, 1919. Plaintiff set up and alleged in her complaint five distinct and separate causes of action. Judgment went for defendant and against the plaintiff on the first four counts and in favor of the plaintiff on her fifth cause of action. Defendant appealed from that portion of the judgment in favor of the plaintiff under her fifth cause of action, and no appeal was taken by plaintiff from the judgment relating to the first four causes of action. The District Court of Appeal was of the opinion that the contract on which plaintiff’s causes of action were based was void and illegal as being in contravention of good morals and public policy. The decision gave its mandate, “The judgment is reversed”, without more. (Brown v. Brown, 8 Cal. App. (2d) 364 [47 Pac. (2d) 352].) Upon the filing of the remittitur plaintiff moved in the superior court to set the cause for trial'upon the issues joined under all of the said five causes of action, and the court granted said motion. Prior to the date fixed for hearing the defendant moved for an order dismissing the said complaint as to the first four counts on the ground that as the plaintiff had not appealed from such portion of the judgment the issues raised thereunder had become final and the court was without jurisdiction or authority to try the same or to make any order relating to an amendment of the causes of action which plaintiff had moved the court to permit. The court made its order granting plaintiff leave to amend her several causes of action. The defendant answered, and judgment was entered in favor of the plaintiff. No appeal was taken from this judgment and time for appeal has long since expired. Thereafter the defendant moved the court for an order setting aside and vacating a portion of the said judgment, to wit, that portion thereof which is in words and figures as follows: “It is ordered, adjudged and decreed that the plaintiff Zoe Lowe Brown do have and recover judgment from the defendant Herbert Cutler Brown upon the first cause of action alleged and set forth in her amended and supplemental complaint in the sum of Nine Thousand Eighty ($9,080.00).” The court