Thomas v. Superior Court

Following an action in divorce an order was made and entered directing petitioner to make certain payments of alimony. The payments as directed not having been made, an affidavit was filed purporting to show such nonpayment, and based thereon an order was issued by respondent herein and served upon petitioner directing that

Thereupon and before any other or further finding, judgment or commitment had been prepared or signed, petitioner applied to this court for an alternative writ of prohibition directed to respondents requiring that they show cause why they should not be restrained from proceeding further in said matter. Eespondents appeared by demurrer, alleging that the petition did not state facts sufficient to constitute a cause of action nor grounds for issuance of a writ of prohibition. In support thereof defendant argued that no final order had been made by the court, and until findings and commitment had been issued as directed by the court there was nothing toward which a writ could be directed.

We believe that the objection is valid. While it is true that a minute order might be sufficient to carry out the directions of the court, nevertheless the order here made shows upon its face that it was not intended as a final judgment of the court.

In Estate of Spreckels, 165 Cal. 597 [ 133 Pac. 289 , 293], the trial judge directed the clerk of the court to enter a minute order wherein it was recited that a certain disposition should be made as to the estate and ordered that findings and decree of distribution be prepared. Upon the motion to settle the findings pursuant to the foregoing order, certain of those interested in the estate obtained a writ of

“Little need be said on this point. The minute order which is claimed by appellants to have the force of a judgment, followed the announcement in its written opinion of the views of the superior court on the question of advancements, . . . But such order was not a final judgment or decree nor intended to be such or so considered by either court or counsel when it was entered. . . . On its face the minute entry, claimed to be in effect a judgment, is designated as an order, and its terms show that it could not have been intended as a decree of distribution. . . . But as convincing proof it was not intended to be and was not a final decree it ordered ‘that findings and a decree of final distribution be prepared accordingly ’. The order at most, taken in connection with the circumstances •under which it was made, shows that it amounted only to an opinion of the court as to how the estate should be distributed . . . and that the distribution of the estate would only be had on findings and a decree of final distribution to be thereafter prepared and signed.”

A judgment is defined by section 577 of the Code of Civil Procedure as “a final determination of the rights of the parties in an action or proceeding”. And, an order is defined by section 1003 of the Code of Civil Procedure as “every direction of a court or judge made or entered in writing and not included in a judgment”.

An inspection of the minute order entered in the instant case shows that it does not cover certain matters essential to a determination of the matter, and inasmuch as the order contains the proviso set forth above, we are of the opinion that the minute order in question is not a final judgment and that the proceedings herein having been premature, the demurrer should be sustained and the writ dismissed. It is so ordered.

Thompson (R. L.), J., and Plummer, J., concurred.