BORENSTEIN v. BORENSTEIN (1938)

Motion to dismiss an appeal from an order denying motion to vacate, set aside, and annul an interlocutory and final decree of divorce on the ground that the appellant did not obey a court order to pay counsel fees and costs to respondent.

The parties have been divorced. Defendant moved the trial court to vacate and set aside the interlocutory and final judgments herein on the grounds that plaintiff wife had not been residing in this state for one year prior to the filing of her action, and that the parties had already been divorced by decree of a Mexican court. The motion to vacate was denied. Defendant appealed from the order by notice filed August 14, 1937.

The printed transcript was filed herein on September 18, 1937. The opening brief was filed October 11, 1937. One stipulation shows that respondent was granted until December 10, 1937, to file her brief. No further extensions appear. The brief of respondent has not been filed.

From the moving papers it appears that on October 21, 1937, an order was made by the trial court requiring appellant to pay to respondent the sum of $300 as and for attorneys' fees in defense of the appeal, and the further sum of $50 for costs. Payment was to be made forthwith. This order was entered after the filing of the transcript and brief herein, but was one which the trial court had jurisdiction to make. Bruce v. Bruce, 160 Cal. 28, 116 P. 66; Dunphy v. Dunphy, 161 Cal. 87, 92, 118 P. 445.

Upon the sole ground that the order allowing attorneys' fees and costs has not been complied with, respondent now moves to dismiss the appeal. We are cited to no authority or statements of fact which would justify a dismissal on such grounds. There does not appear to be any merit in the present motion. A motion to secure a stay of proceedings until appellant shall comply with the order requiring the payment of attorneys' fees and costs, if made, would afford a proper remedy. Allen v. Superior Court, 133 Cal. 504, 65 P. 977.

The motion to dismiss the appeal is denied.

WASTE, Chief Justice.

We concur: CURTIS, J.; EDMONDS, J.; LANGDON, J.; HOUSER, J.