Barron v. Barron (1908) · DecisionDepot

Barron v. Barron

Name: California Superior Court Tentative Rulings
Creator: DecisionDepot
License: https://creativecommons.org/licenses/by-nc/4.0/

California Supreme Court Jun 11, 1908 No. Civ. No. 432 and S. F. No. 4509Published

AI Brief

AI-generated · verify before citing

Holding. The court clarified that its denial of a rehearing does not endorse the appellate court's implication that a plaintiff loses the right to dismiss an action after an interlocutory divorce decree becomes final.

Issues

Whether a plaintiff retains the right to dismiss an action after an interlocutory decree of divorce has become final.

Disposition. Petition for rehearing denied.

Synopsis

Divorce—Interlocutory Decree—Vacation and Dismissal.—After six months prescribed by Civil Code, section 131, and Code of Civil Procedure, section 473, within which appeal may be taken from or attack by other means inaugurated against an interlocutory judgment of divorce by default, has expired, plaintiff cannot, on an ex parte application, have the same set aside and the suit dismissed before expiration of the year during which such judgment must be in existence, under section 131, preceding entry of final judgment.1

Divorce—Interlocutory Decree—Waiver of Bight to Divorce.— An interlocutory judgment of divorce provided for by Civil Code, section 131, which becomes final by the lapse of six months from entry without appeal or motion to set it aside, merely establishes conclusively plaintiff’s rights to a divorce, and it does not necessarily follow that he or she may not waive the exercise of such right and dismiss the action.

PER CURIAM. In denying the petition for a rehearing of this cause we are not to be understood as approving that part of the opinion of the district court of appeal which implies that, after an interlocutory decree of divorce has become final by the lapse of six months from its entry without appeal or • motion to set it aside, the plaintiff has not the right to dismiss his or her action at any time before the entry of a final decree. The interlocutory decree, when final, merely establishes conclusively the right of the plaintiff to a divorce. It does not necessarily follow that he or she may not waive the exercise of that right. Whether the plaintiff could have done so was not a question arising on this appeal, and it is not decided.

Barron v. Barron

AI Brief

Synopsis

More from California Supreme Court

Related research

AI Brief