Rose v. Rose

Decision Date08 May 1952
Citation243 P.2d 578,110 Cal.App.2d 812
CourtCalifornia Court of Appeals Court of Appeals
PartiesROSE v. ROSE. Civ. 19011.

Edward Raiden, Los Angeles, for appellant.

Fink, Rolston, Levinthal & Kent, Los Angeles, for respondent.

VALLEE, Justice.

This is a motion to dismiss the appeal.

On March 8, 1948, Eva S. Rose as plaintiff obtained an interlocutory decree of divorce from Samuel C. Rose, by which Samuel was ordered to pay Eva $75 a month for the support of their minor daughter, Jacqueline. On April 7, 1950, Eva applied for an increase of the award, for costs, and attorney fees. After a hearing the application was denied. The court did not order that Jacqueline be brought into the action nor did she take any steps to be made a party to the record. She did not appear in the action by a general guardian or by a guardian ad litem.

Eva did not appeal from the order denying her application. Jacquieline, a minor, within the time prescribed by law, filed a notice of appeal from the findings and order made on Eva's application. Samuel has made a motion to dismiss the appeal on the ground that Jacqueline has no right to appeal from the order. An appeal does not lie from the findings and that appeal must be dismissed.

May Jacquieline, a minor, not a party to the record in the superior court, not brought into the action by order of the court, without a general guardian or a guardian ad litem, appeal from the order?

Any party aggrieved may appeal. Code Civ.Proc. § 938. The term 'party' includes any person who is a party to the record. Pacific States Savings &amp L. Co. v. Mortimer, 70 Cal.App.2d 811, 814, 161 P.2d 684. A person who is not a party to the record cannot appeal. Eggert v. Pacific States S. & L. Co., 20 Cal.2d 199, 200-201, 124 P.2d 815. One may become a party to the record by taking appropriate steps to be made such. Pacific States Sav. & L. Co. v. Mortimer, supra. Jacqueline is a minor. She could appear in the action only by her general guardian or by a guardian ad litem appointed by the court. Code Civ.Proc. § 372. Since Jacqueline was not named as a party to the action, did not take any appropriate steps to become a party to the record, and since the court did not order her brought into the action, she has no right to appeal from the order. The fact alone that Jacqueline has a beneficial interest in an increase of an award of support money does not entitle her to appeal. Braun v. Brown...

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7 cases
  • Hernandez v. Restoration Hardware, Inc.
    • United States
    • California Court of Appeals Court of Appeals
    • March 14, 2016
    ...grandparents were aggrieved by order, grandparents' appeal dismissed because they were not parties to action]; Rose v. Rose(1952) 110 Cal.App.2d 812, 813, 243 P.2d 578 [child appealed from order denying mother's application for increased child support for child; court ordered appeal dismiss......
  • Lundblade v. Phoenix
    • United States
    • California Court of Appeals Court of Appeals
    • February 18, 1963
    ...is a nonappealable order. It amounts to no more than an announcement of the trial court's decision on the motion. (Rose v. Rose, 110 Cal.App.2d 812, 813, 243 P.2d 578; In re Estate of Murphy, 50 Cal.App.2d 440, 441, 123 P.2d 129; Burstein v. Zelman, 182 Cal.App.2d 1, 5, 5 Cal.Rptr. 829; and......
  • City of Santa Cruz v. MacGregor
    • United States
    • California Court of Appeals Court of Appeals
    • February 16, 1960
    ...Lydia Silvanes, however, the situation is different. She was not a party below, and her appeal must be dismissed. Rose v. Rose, 110 Cal.App.2d 812, 243 P.2d 578. 2. Did the appellant Silvanes produce sufficient evidence to have sustained a finding in his We phrase the question in this way b......
  • Sloan's Estate, In re
    • United States
    • California Court of Appeals Court of Appeals
    • November 15, 1963
    ...143 Cal. 476, 77 P. 443; Eggert v. Pacific States S. & L. Co. 20 Cal.2d 199, 124 P.2d 815; Estate of Silver, supra; Rose v. Rose, 110 Cal.App.2d 812, 243 P.2d 578. These cases hold that in addition to being a party 'aggrieved' under section 938 of the Code of Civil Procedure and entitled to......
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