Opinion
Rehearing Denied Nov. 25, 1935.
Hearing Granted by Supreme Court Dec. 30, 1935.
Appeal from Superior Court, Los Angeles County; Warren V. Tryon, Judge.
Action by Marion Clara Kellett against O. R. Marvel, administrator of the estate of Thomas N. Kellett, deceased, substituted for Thomas N. Kellett, deceased. From an order, the plaintiff appeals.
Appeal dismissed.
COUNSEL
Marion Clara Kellett, in pro. per.
Neil G. Locke, of Los Angeles, for respondent.
OPINION
EDMONDS, Justice pro tem.
The tangled skein of this litigation includes four separate actions brought by appellant as plaintiff in the superior court. In the first action numbered D-57350 in that court, she sued for divorce. Her husband defaulted and she secured an interlocutory decree of divorce, which ordered him to pay her the sum of $2,400, awarded her certain personal property, and gave him certain real estate. The property rights were determined in accordance with an agreement which the parties had entered into. Thereafter, appellant moved to set aside the interlocutory decree of divorce under the provisions of section 473 of the Code of Civil Procedure. This motion was denied and the ruling was affirmed on appeal. Kellett v. Kellett, 110 Cal.App. 691, 294 P. 755. Subsequently appellant made a motion for counsel fees in connection with an appeal from another order made after judgment, and for alimony, which motion was denied. This ruling was also affirmed on appeal. Id. (Cal. Sup.) 39 P.2d 203.
During the progress of the various proceedings in the divorce action, appellant filed three other actions against her husband. In the first of these (No. D-65544), she sought to set aside the interlocutory decree of divorce which had been made in her favor in action No. D-57350. Another action (No. 306434) was brought by appellant for the purpose of quieting title to the real estate awarded to the husband in the divorce action (No. D-57350), pursuant to the property settlement agreement. In the last action commenced by appellant (No. D-92871), she asked the court to set aside the interlocutory decree in the divorce action (No. D-57350), and the judgment in case No. D-65544, by which the court refused to set aside the same decree.
In February, 1931, the cases mentioned were in the following situation: In the divorce action a motion made by appellant "to deny the application and motion of the defendant for a final decree" was pending for hearing. The issues in cases numbered 306434 and D-92871 were ready for trial. Case No. D-65544 had been tried two years before and a judgment entered therein adverse to the appellant. No appeal had been taken therefrom. When appellant’s motion, termed by her "a resistance to the filing of the final decree," came before the court, the trial judge suggested that he hear not only the motion but also that he also try the issues in the other cases. His statement to counsel was that "you better enter into a written stipulation all those cases may be consolidated for the purpose of trial at this time. Then you will have all of them, and then I will give a decision in each and every one of them."
Accordingly, a written stipulation was filed in each of the four cases identical in form except as to case numbers, and providing "that the cases * * * may be consolidated * * * for hearing, and that all the matters therein contained may be heard and adjudicated at this time and the decision entered herein shall be in complete adjudication of each case herein designated." The trial proceeded, evidence was introduced by both parties, and the court determined all issues adversely to appellant. A written order was filed denying appellant’s motion in case No. D-57350, and separate judgments were filed in each of cases numbered 306434 and D-92871. The judgments are based upon separate findings of act and conclusions of law. No judgment or order was made at that time in case D-65544, and we cannot see why this case was included in the stipulation for trial. It had been tried some two years before, judgment had been entered adverse to the appellant here, and no appeal had been taken therefrom. Obviously that judgment had become final, and while the principal question before the court in the trial of the issues presented in the other three cases was whether or not they were res judicata by reason of the judgment in case D-65544, the latter action could not have been before the court for any purpose other than a consideration of the terms of the judgment previously rendered to determine the issue of res judicata in the other cases.
The present appeal comes to this court under a notice filed only in case D-57350 and in which it is stated appellant appeals: "From the order denying plaintiff’s motion to resist defendant’s application for final decree of divorce entered and rendered in said action in favor of the defendant, Thomas N. Kellett, and against the plaintiff, Marion Clara Kellett, on the 19th day of March, 1931, and entered in Book 787, page 112, on the 27th day of March, 1931, and the whole thereof; and from the order rendered in the above-entitled action, in favor of defendant and against the plaintiff, but being case No. D-65544, on the 26th day of March, 1931, and the whole thereof; and from the judgment rendered in the above-entitled action, but being case No. D-92871, in favor of the defendant and against the plaintiff, on the 19th day of March, 1931, and entered in Book 773, page 188, on the 28th day of March, 1931, and from the whole thereof; and from the judgment rendered in the above-entitled action, but being case No. 306434, in favor of the defendant and against the plaintiff, on the 19th day of March, 1931, and entered in Book 772, page 150 on the 27th day of March, 1931, and from the whole thereof; and from the order denying plaintiff’s motion for new trial entered on the 19th day of May, 1931 in Book 61, page 3, and the whole thereof."
Since the appeal was taken, Thomas N. Kellett, appellant’s former husband and the defendant in all of the cases mentioned, died, and his representative has been substituted as respondent.
The first question presented is to determine from what order or judgment appellant has appealed in case D-57350. One day after the order and the two judgments were filed determining the rights of the parties on the motion in case D-57350 and the issues in cases 306434 and D-92871, the final decree of divorce in case No. D-57350 was filed. This decree was apparently filed without reference to the trial of the issues referred to, except as appellant’s motion may have delayed such action, being signed by another judge and reciting that "now upon the court’s own motion it is adjudged that plaintiff is granted a final judgment of divorce from defendant." The notice of appeal specifically states that appellant appeals from the order denying her motion, and from the plain terms of the notice and the record before us, it is insufficient as a notice of appeal from the judgment. As an appeal does not lie from an order made before judgment, the notice is also ineffectual as an appeal from the order denying appellant’s motion seeking to prevent the entry of the final decree of divorce.
By the next specification the appellant attempts to appeal from an order stated to have been made in case No. D-65544. The record shows no such order made in that case on the date stated or at any other time.
The two following specifications recite that the appellant appeals from the judgments in cases numbered D-92871 and 306434. As has been stated, there is only one notice of appeal, which is entitled and filed in the divorce action. An appeal is taken by filing a notice of appeal. Section 940, Code Civ. Proc. "The notice of appeal is a necessary part of the record in order that this court may be enabled to assume jurisdiction of the appeal." Nevin v. Mallon, 136 Cal.App. 571, 572, 29 P.2d 303, 304. While it is true that when actions are consolidated, they are thereafter treated as a single action (1 Cal.Jur. 374), we think that the record here does not show such a consolidation. On the contrary, it appears that upon the suggestion of the trial judge, the cases were tried together as a matter of convenience. This is a common practice in trial courts, but when this course is followed the actions are not consolidated in the statutory sense of that term.
The suggestion of the trial judge, at the commencement of the hearing of appellant’s motion, was that the cases should be consolidated "for the purpose of trial." A statutory consolidation is for all purposes thereafter, with a single set of findings to be made as the basis of a single judgment. Such a consolidation was certainly not contemplated by the judge in view of his further statement that "then I will give a decision in each and every one of them." The minute order recites that it is stipulated "that cases D-65544, D-92871 and 306434 be consolidated and tried with case No. D-57350, and that all testimony taken apply to either case, so far as competent, relevant and material." The language of the written stipulation seems also to contemplate a consolidation for the purposes of trial only. It is significant, although not controlling in this connection to note the order denying appellant’s motion filed in case No. 57350, and the findings of fact and conclusions of law and the judgment in each of cases D-92871 and 306434. These indicate that the cases were considered by the court as having been tried together but not consolidated as one action. And not only did appellant’s counsel make no objection to the rendition and entry of separate judgments, but he filed a separate notice of intention to move for a new trial in each case. This clearly shows that he did not consider that the cases had been consolidated. And the ruling of the court on the motions was "that said motion be and the same is hereby denied in each case."
We, therefore, hold that the cases were not consolidated within the meaning of section 1048 of the Code of Civil Procedure, and that no notice of appeal having been filed in cases D-92871 and 306434, there is nothing before us in those cases. This conclusion would also apply to case D-65544 if the record showed any judgment or order from which an appeal might be taken.
The remaining specification in the notice of appeal refers to the order denying appellant’s motion for a new trial. "An appeal does not lie from an order denying a motion for a new trial." Burk v. Extrafine Bread Bakery, 208 Cal. 105, 114, 280 P. 522, 526.
For the foregoing reasons the appeal is dismissed.
We concur: HOUSER, P. J.; YORK, J.