Mackie v. Mackie

• Decision Date: 28 November 1960
• Citation: 9 Cal.Rptr. 173,186 Cal.App.2d 825
• Court: California Court of Appeals Court of Appeals
• Parties: Eleanora MACKIE, Plaintiff and Respondent. v. Malcolm MACKIE, Defendant and Appellant. Civ. 24463, 24633.

Page 173

9 Cal.Rptr. 173

186 Cal.App.2d 825

Eleanora MACKIE, Plaintiff and Respondent. v. Malcolm MACKIE, Defendant and Appellant.

Civ. 24463, 24633.

District Court of Appeal, Second District, Division 3, California.

Nov. 28, 1960.

Rehearing Denied Dec. 20, 1960.

Malcolm Mackie, in pro. per.

Edwards & Edwards, Glendale, and Eric A. Ashton, Los Angeles, for respondent.

FORD, Justice.

Feeling aggrieved because of the course taken by his wife's action against him for a divorce, the appellant has undertaken two appeals. In one, he states that he 'appeals from the Orders made and entered herein on the 17th day of September, and from the Restraining Order, as follows: 'Defendant is to remove himself from the family home by 6:00 P.M. on September 20, 1959.'' In the other, his notice of appeal is of an omnibus nature in that he 'appeals from the orders entering Defaults 1 and 2, the Judgment, the intermediate rulings, proceedings and Orders involving the merits and/or affecting the judgment and substantially affecting the rights of this Defendant in the above entitled action, and the Order after judgment in re contempt.'

While the record as originally presented to us contained no order after judgment with respect to any alleged contempt except orders to show cause, ¹ on our own motion we have augmented the record by having the file of the superior court transmitted to this court pursuant to rule 12 of the Rules on Appeal. The minutes of the court for February 5, 1960, contain the following entry: 'Charge of contempt against defendant is dismissed.' In any event, no appealable order is involved. Tripp v. Tripp, 190 Cal. 201, 202, 211 P. 225; Travis v. Travis, 89 Cal.App.2d 291, 200 P.2d 843. As to the remaining portion of the second notice of appeal, the matters mentioned in addition to the judgment are not separately appealable but are reviewable on the appeal from the judgment (see 3 Witkin, California Procedure, 2162-2164); consequently, the appeal is in essence from the judgment.

The chronicle of the case is as follows: 1. On July 21, 1959, Mrs. Mackie filed in the Glendale branch of the superior court her complaint for divorce in which she alleged that the community property of the parties consisted of a family home and stated as her ground for seeking a divorce that Mr. Mackie had treated her 'in a cruel and inhuman manner' whereby she was caused 'grievous mental and physical pain and suffering.' 2. On July 25, 1959, there was service of the summons on Mr. Mackie. 3. On August 3, 1959, the defendant, Mr Mackie, acting in propria persona, filed a demurrer to the complaint. 4. The default of the defendant having been entered by mistake on August 13, 1959, an order was made on August 24, 1959, vacating and setting aside such default. 5. On September 2, 1959, the defendant filed an affidavit in which he stated: 'That the Judge before whom the hearings in the aforesaid action are pending is prejudiced against the interest of this party so that affiant cannot or believes that he cannot have a fair and impartial hearing before said judge.' 6. In the minutes of the court for September 2, 1959, it was stated that the defendant's motion for a change of venue was denied without prejudice and that his demurrer was sustained. 7. On September 10, 1959, an amended complaint for divorce was filed in which the allegations with respect to the community property were unchanged but more specific allegations as to physical and mental cruelty were made. In the prayer, part of the relief asked was that 'the community property of the parties be awarded to the plaintiff as her sole and separate property.' That complaint was served on the defendant by mail on September 10, 1959, the envelope being addressed to him at 507 North Kenwood, Glendale, California, the address given by him on the documents embodying his demurrer and his 'affidavit for disqualification' filed respectively on August 3, 1959, and September 2, 1959. 8. On September 11, 1959, the court issued a restraining order and an order that the defendant show cause in the Glendale branch of the court on September 17, 1959, with respect to certain matters which are stated as follows: '(c) Pending the trial of this action you should not be, and pending the hearing on this Order, you are, enjoined and restrained from: 1. Annoying, molesting or in any way injuring the plaintiff. (d) Why you should not be removed from the family dwelling at 507 North Kenwood, Glendale 6, California.' the affidavit in support thereof contained the following language: 'Defendant has repeatedly used violence on plaintiff. Defendant has given plaintiff four black eyes, has punched out two of plaintiff's teeth and has choked her into unconsciousness. The last black eye was given plaintiff in August of 1958. Since then plaintiff has been in a state of terror and has avoided defendant whenever possible. Defendant has so terrorized plaintiff that she is afraid to spend the night in her own house and must currently stay in a hotel incurring expenses which she is not in a position to afford.' Her age was stated as being 77 years and that of the defendant as being 70 years. 9. An affidavit of service filed on September 17, 1959, contains the statement that the 'Order to Show Cause and Affidavit in re Restraining Order' were served on the defendant by mail, the envelope being addressed to him at 507 North Kenwood, Glendale, California. 10. On September 15, 1959, the defendant filed a notice that on September 17, 1959, in department one of the superior court at the courthouse in the city of Los Angeles (all matters prior thereto having been in the Glendale branch of the court) he would make a motion 'for an order to quash Service of Order To Cause [sic] and Affidavit in re Restraining Order, (1) for lack of Personal Service and (2) failure of the copy to show a signature of any judicial officer nor a date of making the Order.' On September 17, 1959, that matter was 'ordered off calendar.' 11. On September 17, 1959, in the Glendale branch of the court, the defendant not appearing, an order was made which was set forth in the minutes as follows: 'The restraining order re annoying is to remain in full force and effect. Defendant is to remove himself from the family home by 6:00 p.m. on September 20, 1959.' The order was made by a court commissioner acting as a judge pro tempore 'in accordance with Article Six, Section Five of the Constitution of said State, and further in accordance with an appointment of said Commissioner by the Presiding Judge of the Superior Court as Judge pro tempore heretofore made under the authority of Article Six, Section Fourteen of said Constitution and Section 259a, Subdivision 4, of the Code of Civil Procedure of the said State,' pursuant to a 'stipulation' which, however, was signed only by the attorney for the plaintiff. A formal order was signed by the judge pro tempore on October 22, 1959. 12. On September 21, 1959, the defendant filed a notice that on October 6, 1959, in department one of the superior court he would make a motion to have the case transferred to a department other than the Glendale branch of the court, being 'a second motion where the denial of the first motion was expressly made 'without prejudice'.' An affidavit in support thereof was filed on October 2, 1959, in which in substance he charged that an organization known as Property Research Association, of which he was not a member but which had requested him to sign a 'covenant' with respect to the property involved in the action, had 'conspired against the constitutional rights of citizens of the United States in the territory surrounding the City of Glendale.' That motion was granted on October 6, 1959, in department one (the department of the presiding judge of the superior court) although the default of the defendant, as will be hereafter noted, had been entered. The plaintiff apparently did not appear in opposition to the motion. 13. On September 28, 1959, the clerk of the court entered the default of the defendant because of his failure to answer the amended complaint within the time allowed by law. 14. On October 8, 1959, in the Glendale branch of the superior court, an interlocutory judgment of divorce was granted to the plaintiff. Thereunder, the 'community property of the parties consisting of real property,' the legal description of which was stated, was 'awarded to plaintiff as her sole and separate property.' 15. On November 4, 1959, an order was made by the court that on November 12, 1959, the defendant show cause why he should not be adjudged guilty of contempt of court for wilfully disobeying the order with respect to his removal from the residence of the parties. On November 10, 1959, another order to show cause of the same nature was obtained by the plaintiff. As heretofore stated, the proceeding with respect to the alleged contempt was thereafter dismissed.

The defendant's attack on the judgment is stated to be founded on a claim of lack of jurisdiction of the court because of the filing of the affidavit with respect to the disqualification of the judge and 'the transfer of the case to Department One at Los Angeles on October 6, 1959.' He contends that 'the Court thereby lost all jurisdiction in this case and its orders thereafter were null and void.'

We need not be concerned with the failure of the judge who heard the demurrer to the original complaint and the motion for 'change of venue' to honor the appellant's claim with respect to his disqualification under section 170.6 of the Code of Civil Procedure. The appellant suffered no prejudice inasmuch as, after his demurrer was sustained and his first motion 'for change of venue' (which was actually a motion for the transfer of the case from the Glendale department to another department of the court ²) was denied without prejudice, he permitted his default to be entered. Thereafter, he was not in a position to assert a...