Rilcoff v. Rilcoff

BARNARD, P. J The plaintiff filed this action for divorce in Los Angeles County. After an order to show cause and a hearing thereon the court, on September 19, 1941, entered an order requiring the defendant to pay to the plaintiff for her support $75 a month commencing September 20, 1941, and also $25 for costs and $250 for attorney’s fees, payable forthwith.

On September 22, 1941, the defendant filed a demurrer to the complaint with notice of a motion for a change of venue to Kern County, being the county of his residence. This motion was heard and granted on September 29, 1941. The papers were filed in the Superior Court of Kern County on October 8, 1941. On October 14, 1941, the demurrer to the complaint was sustained with ten days allowed to the plaintiff in which to amend. Notice of this order was served on the plaintiff on October 21, 1941.

[890]In the meantime, and on October 10, 1941, the defendant gave notice that he would move for an order modifying the order made on September 19, 1941. On October 14, 1941, the plaintiff filed notice of a motion for additional attorney’s fees in resisting the defendant’s motion for modification, and also filed notice of a motion for an order staying all further proceedings in the action until the defendant had fully complied with the prior order for suit money. On November 5, 1941, the court made an order granting the defendant’s motion to modify the order of September 19, 1941, by striking therefrom the provision for the payment to the plaintiff of $75 per month for her support and maintenance. This order does not mention the two motions of which the plaintiff had given notice, and there is nothing in the record before us to indicate that any such motions were ever made or submitted.

The plaintiff failed to file an amended complaint within the time allowed and on November 14, 1941, the court dismissed the action on that ground, with a provision that all orders previously made therein “are hereby dismissed and discharged.’’ The plaintiff has appealed from the judgment of dismissal and also from the order of November 5, 1941, modifying the previous order for support and maintenance during pendency of the action. The appeal is based upon a clerk’s transcript and a printed bill of exceptions.

Neither in her statement of questions presented nor in her opening brief has the appellant contended that the demurrer to her complaint was improperly sustained, although this is incidentally suggested in her closing brief. The only points urged in connection with the appeal from the judgment of dismissal are that the court had no authority, in dismissing the action, to order the discharge of all orders theretofore made, and that the court erred in entering a judgment of dismissal without passing upon her motion for additional attorney’s fees and her motion for an order staying the proceedings.