Perez v. Perez
Citation | 111 Cal.App.2d 827,245 P.2d 344 |
Court | California Court of Appeals |
Decision Date | 20 June 1952 |
Parties | PEREZ v. PEREZ. Civ. 14958. |
Phil F. Garvey, San Francisco, James A. Himmel, San Francisco, for appellant.
Gladstein, Andersen & Leonard, San Francisco, for respondent.
Two appeals from separate orders granting defendant's motion to recall execution and strike alimony provisions from an interlocutory decree of divorce are presented together.
The first point raised by the appellant is that the court was without jurisdiction to hear the motion because the notice thereof did not state the grounds upon which it would be made as required by section 1010 of the Code of Civil Procedure. The point is without merit. In participating in the hearing and in failing to object to the form of the notice the question of its sufficiency was waived. Hecq v. Conner, 203 Cal. 504, 265 P. 180; Peers v. Stoll, 32 Cal.App.2d 511, 90 P.2d 119; Simonini v. Jay Dee Leather Products Co., 85 Cal.App.2d 265, 193 P.2d 53.
The second point states error in the trial court when it heard oral testimony in support of the motion whereas the notice stated that it would be heard on the accompanying affidavit. The record does not show that any objection was made to this procedure. Section 1010, Code of Civil Procedure reads in part: '* * * the notice of a motion, other than for a new trial, must state when, and the grounds upon which it will be made, and the papers, if any, upon which it is to be based.' It does not require the statement of other evidence than papers. Although sec. 2009, Code of Civil Procedure permits the use of affidavits on motions, other evidence is admissible. 18 Cal.Jur. 656; Younglove v. Steinman, 80 Cal. 375, 377, 22 P. 189. Even if oral evidence had not been admissible without notice, appellant could not complain on appeal of its consideration when he did not object below. Holzer v. Read, 216 Cal. 119, 123, 13 P.2d 697; 2 Cal.Jur. 263. There is no reason whatever why this general rule should not apply to the hearing of a noticed motion, where waiver of requirements of such notice is readily accepted. See Hecq v. Conner, 203 Cal. 504, 265 P. 180.
One of the grounds upon which appellant relies is that the formal order signed by Judge Traverso is a nullity because Judge Traverso did not hear the evidence.
In Reimer v. Firpo, 94 Cal.App.2d 798, 800-801, 212 P.2d 23, 25, the court held: As authority the following is quoted from Guardianship of Sullivan, 143 Cal. 462, 467, 77 P. 153, 155: In that case it was held that another judge of the same court than the one who had heard the evidence had jurisdiction to give the decision, that the right to have the same judge decide can be waived, but that it is error for another judge to decide the case without such waiver. See also Hughes v. DeMund, 96 Cal.App. 365, 368, 274 P. 405; DeMund v. Superior Court, 213 Cal. 502, 505, 2 P.2d 985; McAllen v. Souza, 24 Cal.App.2d 247, 251, 74 P.2d 853; Bartholomae Oil Corp. v. Superior Court, 18 Cal.2d 726, 728, 117 P.2d 674.
However in this case there is a serious question whether any findings were required. In the recent case Parker v. Parker, 107 Cal.App.2d 215, 217, 236 P.2d 828, 829, this court said: The Waymire case is based on Waller v. Weston, 125 Cal. 201, 204, 57 P. 892 which holds that findings of fact are only required as to issues of fact specified in sec. 590, Code of Civil Procedure to wit, matter alleged in a complaint and controverted by answer and new factual matter in the answer. In Euclid Candy Co. v. International Longshoremen, etc., 49 Cal.App.2d 137, 142, 121 P.2d 91 this court held that findings of fact had no place in an order granting a temporary injunction although based on a transcript of 1,400 pages. See also Pessarra v. Pessarra, 80 Cal.App.2d 965, 969, 183 P.2d 279. If on the basis of these cases we hold that no...
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