In re McKean

— The petitioner, as the mother of three minor children, has applied for a writ of habeas corpus. In her petition she alleges that formerly she and C. J. McKean were husband and wife; that there were born as the issue of the marriage the three minor children above mentioned; that on the seventh day of May, 1926, the petitioner commenced an action for divorce; that the husband was duly served with summons and complaint, but that he did not appear and that his default was entered; that thereafter the divorce action came on for trial and an interlocutory decree was' entered on the twentieth day of May, 1926; that the interlocutory decree was in the ordinary form and recited that the divorce was granted on the ground of the defend

[1] The petitioner claims that the modifying order was ineffectual for any purpose until it had been filed and entered. (Code Civ. Proc., see. 664.) That section does not refer to orders, but refers to judgments. There is no provision either in the constitution or the statutes which requires dll orders of a court to be entered at length in its minutes in order that they may be effective. (Von Schmidt v. Widber, 99 Cal. 511 , 514 [ 34 Pac. 109 ] ; 18 Cal. Jur. 663, sec. 16.) [2] When the trial court was disposing of the divorce action it had the power to enter an interlocutory judgment of divorce. (Civ. Code, see. 131.) It also had power to make an order concerning the custody and maintenance of the minors. (Civ. Code, sec. 138.) The fact that it incorporated the order in its interlocutory judgment did not convert the thing which the statute denominates an order into a judgment. Therefore the trial court had authority, and in a proper case it was its duty, to modify or vacate the same. (Civ. Code, sec. 138.) The action taken by the trial court in modifying the original order, under the same line of reasoning, was an order and not a judgment. No statute requires that such an original order, or that such a modifying

[4] The petitioner further claims that the order was defective because it did not contain a finding that the parents were not fit and proper persons to have the custody of the minors. That attack may not properly be made in a habeas corpus proceeding. (In re Lundberg, 143 Cal. 402 , 411 [ 77 Pac. 156 ].)

[5] For the foregoing reasons we reach the conclusion that the Eeddys had the lawful custody of the children at the time this writ was issued. This is true because the Eeddys had obtained possession of the children by virtue of the execution of the said modifying order before the appeal from it was perfected. Having learned that the modifying order was thus executed before it was filed, petitioner might have asked the trial court to set aside and withhold the execution of the modifying order until she could have had time to perfect her appeal. In that ease, after the appeal had been perfected, no further action of the trial court could have been taken pending the appeal looking to the enforcement of the modifying order. (Code Civ. Proc., see. 946; Ex parte Queirolo, 119 Cal. 635 [ 51 Pac. 956 ].) But instead of doing so, she appealed at once. The appeal did not have the effect of undoing what had already been done under the modifying order before the time the appeal was perfected. (Ewing v. Jacobs, 49 Cal. 72 ; Thalheim v. Camp Phosphate Co., 48 Fla. 190 [5 Ann. Cas. 784, 37 South. 523 ] ; Grayson v. Harris, 102 Miss. 57 [Ann. Cas, 1914C, 1219, 1223, 58 South. 775 , 59 South. 1 ].) We have been referred to no provisions of law, and know of none, stating that an appeal from an order has any further or additional effect upon the force of the order appealed from than is provided in Code of Civil Procedure, section 946,

The argument suggests itself that the modifying order is a continuing one and that for this court to leave the children in the custody of the Beddys now after the appeal from the order has been perfected is substantially and in effect a continuing execution or “further proceeding” within the meaning of that term as used in Code of Civil Procedure, section 946. But upon this point we are unable to distinguish the facts in this case from the ruling referred to by respondent in De Lemos v. Siddall, 143 Cal. 313 [ 76 Pac. 1115 ]. There the mother of the child delivered it into the possession of its father in open court immediately upon the pronouncement by the court of a modifying order giving its custody to the father. Shortly afterward she perfected an appeal from the order. On appeal it was her contention that the effect of her appeal was to set at naught the order appealed from pending the appeal, but. the supreme court held that the order had been “executed” and that the effect of the appeal was not to undo what had already been done, but that it merely held matters in the same condition as they existed at the time the appeal was perfected.

There is authority to the effect that petitioner might apply to the court having jurisdiction of the appeal for an appropriate order fixing the custody of the children pending the appeal. (3 C. J. 1323, see. 1450; Stricker v. Wakeman, 13 Abb. Pr. (N. Y.) 85; Burr v. Burr, 10 Paige (N. Y.), 166, 169; Tilley v. Washburn, 91 Wis. 105 [ 64 N. W. 312 ].) This is a question, however, that should not be decided by this court, but by the court having jurisdiction of the appeal.

This writ was issued by one of the justices of this court, and at the time of issuing the same he made an order directing the custody of the children to be in the mother, petitioner, pending the judgment upon this writ. This order was made under the authority of Penal Code, section 1494. The terms of that section permit such an order to be made “until judgment is given on the return.”

The judgment of this court upon the return of the writ is that the Beddys are entitled to the custody of the children not by force of the order of this court, but by force of the modifying order made by the trial court. The effect of giving this judgment upon this writ is to terminate the force

Koford, P. J., concurred.