PIKE v. PIKE

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District Court of Appeal, Second District, Division 2, California.

Eugenie H. PIKE, Plaintiff, Cross-Defendant and Appellant, v. Ruth Wooley PIKE, as Executrix of the Estate of Warren A. Pike, Deceased, Defendant, Cross-Complainant and Respondent.

Civ. 16937.

Decided: August 25, 1949

I dissent from the order denying the petition for rehearing. Further consideration has led me to the conviction that the decision of this court should be vacated and further examination given to the questions presented by the appeal.

No appeal having been taken from the decree in the divorce action between plaintiff and decedent, Warren Pike, and no proceedings having been had for its modification, it became final and the trial court was without power in the instant action to enter a judgment contrary to the terms of the divorce decree. Wilson v. Superior Court, 31 Cal.2d 458, 464, 189 P.2d 266; Deyl v. Deyl, 88 Cal.App.2d 536, 539, 199 P.2d 424. The interlocutory decree of divorce is a conclusive adjudication of all issues determined thereby and cannot be modified save in the manner generally applicable to judgments. Leupe v. Leupe, 21 Cal.2d 145, 148, 130 P.2d 697.

The court erred in holding that the joint tenancy was terminated by the property settlement agreement. The facts in the instant case do not render it distinguishable from Spahn v. Spahn, 70 Cal.App.2d 791, 800, 162 P.2d 53, and Hammond v. McArthur, 30 Cal.2d 512, 183 P.2d 1.

Limitation of time does not permit discussion of other questions that should be further considered.

WILSON, Justice.

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