Opinion
79 Cal. 633 at 701.
Original Opinion of July 17, 1889, Reported at 79 Cal. 633.
JUDGES: Fox, J. Beatty, C. J., Works, J., Sharpstein, J., Paterson, J., McFarland, J., and Thornton, J., concurred.
OPINION
FOX, Judge
A petition for a rehearing having been filed, the following opinion thereon was rendered on the 20th of August, 1889:
The petition for rehearing in this cause is denied.
One of the points made in the petition is to the effect that the court ought to vacate the judgment made and given herein on the seventeenth day of July, 1889, on the ground that the appeal from the order denying the new trial ought not to have been entertained, because the steps taken in the lower court for a new trial were premature, having been taken before the coming in of the report of a referee appointed by the court to report upon the amount and character of the community property of the parties, and that the court below had no jurisdiction to hear the same.
Before the argument of this case upon the appeal from the order denying motion for new trial, a formal motion was made to dismiss the appeal upon several grounds, one of which was substantially the same as the ground of this objection. The motion was elaborately argued, orally and upon briefs, and upon due consideration was by the court denied. The court fully considered the question of jurisdiction to hear and determine the motion for new trial, and the appeal from the order denying the same, at the time, and we see no reason to change the conclusion then reached.
The action is for divorce, and before any steps were taken in the matter of a motion for new trial, the cause had been tried upon its merits, and the court had made and filed its decision and findings upon all the issues in the cause necessary to the entry of a judgment and decree for divorce, and had ordered judgment and decree accordingly. As ancillary to that decree, the court found that the plaintiff was entitled to a division of the community property, but was at the time unadvised as to what was community property. It appointed a referee to take testimony and report to the court upon that question. But that question was not one necessary to be investigated prior to the entry of judgment for divorce. In practice, the settlement of alimony and the distribution of community property are matters which are frequently and properly done after judgment, -- sometimes long after, -- and so far as relates to alimony is the subject of frequent change. Orders in this behalf are orders after judgment, and are themselves the subject of appeal. It is never held that motions for new trial must or can properly be delayed until the final settlement of all matters which may lawfully be the subject of consideration and order, or even of supplemental decree after judgment.
The reference in this case was not one for the taking of an account, or for report upon any subject necessary to enable the court to render judgment upon the issues in the cause, but was one for the purpose of securing information necessary for carrying a judgment already ordered into effect. ( Code Civ. Proc., sec. 639.)
A new trial is the re-examination of an issue of fact, in the same court, after a trial and decision by the court. ( Code Civ. Proc., sec. 656.) In this case all the issues necessary to final judgment had been tried and determined. All that remained was to carry the judgment into effect. The time had come when, if ever, a motion to vacate that decision, and for a new trial, must be made, under the provisions of the Code of Civil Procedure, secs. 657 et seq. It was regularly made, heard, and determined, and from the order denying such motion an appeal was regularly prosecuted to this court. The court had full jurisdiction to hear and determine such appeal.
Here all the issues in the case necessary to determine whether or not the plaintiff was entitled to a decree for divorce, and also whether she was entitled to share in the community property, had been tried and determined by the court, and the court had determined the same, and filed its findings thereon, and judgment could be, and thereafter in due course was, entered thereon. All that remained was to carry that judgment into effect by making division of the community property, as provided in the decision and in the judgment that followed. The judgment of the court on the issues involved was a final judgment. (Clark v. Dunnam , 46 Cal. 208.) Within ten days after notice of that decision it was the duty of the defendant to take the initiatory steps toward moving for a new trial, if he ever intended to make such motion, and thereafter to prosecute the same with diligence to a determination. He had the right to waive the notice, and take these steps without waiting for notice. Our conclusion is, that the motion for new trial was not prematurely made, and that the court had full jurisdiction to entertain the same, and to hear and determine the motion. It follows that this court had full jurisdiction to hear and determine the appeal from the order denying such motion.