Moran v. Moran

ALLEN, J. pro tem. This is an appeal from a judgment granting plaintiff an interlocutory decree of divorce. The record discloses the following situation:

On September 16, 1938, respondent filed an action for divorce from appellant on the ground of extreme cruelty, and alleged that she was married to appellant in Sacramento on February 11, 1918. Appellant filed an answer admitting the marriage. The action was tried on February 23, 1939, at which time respondent offered evidence duly corroborated in support of her complaint. Appellant offered no evidence and the court granted respondent an interlocutory decree of divorce on March 3, 1939. On July 17, 1939, appellant moved the court for an order vacating and setting aside said interlocutory decree of divorce, and for leave to file a cross-complaint, raising the issue that the plaintiff at the time of marriage to defendant, was the wife of Paul R. Hendricks (then living), and praying for an annulment of the marriage. This motion was granted and the cross-complaint filed.

[223]Plaintiff filed an answer thereto, and the action was again tried on the new issues and submitted on August 30, 1939. On September 8, 1939, the trial court, on its own motion, made an order setting aside its former order which had vacated the original interlocutory decree entered on March 3, 1939, and granted defendant leave to file a cross-complaint. This latter order was held by this court to be without jurisdiction (Moran v. Superior Court, 35 Cal. App. (2d) 629 [96 P. (2d) 193]) and was annulled. On March 1, 1940, the court signed findings of fact and conclusions of law, and on the same date entered a second interlocutory decree granting plaintiff a divorce. On March 4, 1940, appellant filed notice of intention to move for a new trial on the statutory grounds set forth in subdivisions 4, 6, and 7 of section 657 of the Code of Civil Procedure, supported by an affidavit of P. H. Johnson, attorney for defendant. Defendant also served notice of intention to move the court for an order for the issuance of a commission to take the deposition of Paul R. Hendricks. This notice was dated February 28, 1940, and time fixed for hearing said motion was March 11, 1940. The motion was duly heard at that time and was denied by the court. On petition to this court a writ of mandamus was issued ordering the court to issue the commission to take the testimony prayed for. (Moran v. Superior Court, 38 Cal. App. (2d) 328 [100 P. (2d) 1096].) On April 2, 1940, a motion was made for a new trial on the grounds set forth above. At this hearing evidence was taken, and on May 3, 1940, the motion was denied. An appeal was taken from the judgment, and the record, including the proceedings on the motion and order denying a new trial, is before the court on a bill of exceptions.