Opinion
Department One
Appeal from an order of the Superior Court of the city and county of San Francisco allowing a party to a divorce proceeding, who had been ordered to pay the costs and expenses of a reference, to mortgage his property for the purpose of securing the money to comply with the order.
COUNSEL:
Henry E. Highton, J. A. Cooper, and H. C. McPike, for Appellant.
Barclay Henley, E. D. Wheeler, and Henley, MacSherry & Herrmann, for Respondent.
JUDGES: Garoutte, J. Harrison, J., and De Haven, J., concurred.
OPINION
GAROUTTE, Judge
In this action a decree of divorce was rendered in favor of appellant, and H. T. Cresswell was appointed a referee by the court to take testimony, and report thereon as to the character, condition, and value of the property of respondent, preliminary to a rendition of final judgment. The decree required that the costs and expenses of the referee should be paid by respondent.
The referee filed a petition asking the court to make an order directing respondent to forthwith pay into court the sum of two thousand five hundred dollars, to be used in the payment of the costs and expenses of such reference. The appellant in this proceeding appeared at the hearing of the said petition, joined with the referee in asking for the order, but objected to the court granting respondent permission to mortgage his property for the purpose of securing the money wherewith to comply with the order; and the consideration of appellant's objection was the matter of contest before the court.
If we understand appellant's affidavits, it was contended by her that respondent was able to procure the money from other sources, but the affidavits and oral evidence placed before the court at the hearing are sharply conflicting upon this issue, and therefore we will not discuss the evidence. The court made an order that respondent be allowed to mortgage his realty for the purpose of securing the money upon terms to be approved by the court, and set aside the injunction and lis pendens in the case to that extent and for that purpose alone.
The order of the court meets with our entire approval. No final decree in the action could be entered until the referee made his report, the referee could not make his report until the money was forthcoming to enable him to do his work, the money could not be advanced unless a mortgage was given to obtain it; hence the further progress of the trial was completely blocked, unless the court made the order here contested. We see no reason why the court did not possess the power to make the order; and if it did not possess such power, we see no reason why appellant should complain of that fact.
Let the order be affirmed.