Cuneo v. Cuneo

In this action for divorce an order was made shortly after the filing of the complaint requiring the defendant to pay to plaintiff's attorneys a certain sum on account of counsel fees, and further providing that defendant "pay forthwith to plaintiff personally, the sum of Fifty ($50.00) Dollars per month for the support and maintenance of the plaintiff pending this action, and the same sum every month thereafter pending this action, until the further order of this court." The action was subsequently brought to trial upon plaintiff's complaint, the allegations of which were denied by defendant's answer, and upon the cross-complaint of defendant; each party to the action seeking a decree of divorce against the other. On November 23, 1917, the following order was entered in the minutes of the court: "This cause having been heretofore submitted to the court for consideration and decision, and now the court having considered the same and being fully advised herein, it renders the following decision: 'Plaintiff's prayer for a divorce is denied. Defendant's prayer for a divorce is denied.' " On February 28, 1918, plaintiff made a motion for an order directing the clerk of the lower court to issue an execution in said action in favor of plaintiff and against the defendant for the sum of $150, claimed to be due her as alimony for three months, commencing December 16, 1917, and ending March 15, 1918. On March 18, 1918, the court made an order denying the said motion of plaintiff, from which latter order plaintiff attempts to prosecute this appeal.

[1] The entry on the minutes of the court on November 23, 1917, is not a final judgment in the action. Issues were tendered by the pleadings, and there is no showing that findings were waived. Consequently there could have been no rendition of judgment until such findings were made and filed with the clerk. (Crim v. Kessing, 89 Cal. 478, 488, [23 Am. St. Rep. 491, 26 P. 1074].) The record does not disclose that this has been done. The order from which this appeal is attempted to be taken, is, therefore, not an order made after final judgment and is not an appealable order under section 963 of the Code of Civil Procedure.

The appeal is dismissed.

Langdon, P. J., and Brittain, J., concurred.