Opinion
Docket No. 5040.
December 1, 1954.
APPEAL from a judgment of the Superior Court of San Bernardino County. John G. Gabbert, Judge. Affirmed.
Assigned by Chairman of Judicial Council.
David Lynn for Appellant.
Wilson Wilson for Respondent.
This is an action in equity to vacate the order of adoption made and entered in action number 22723 in the Superior Court of San Bernardino County. The trial court sustained a general demurrer to the complaint without leave to amend and plaintiff appeals from the judgment thereupon entered.
Plaintiff and defendant were married in 1936 and separated in 1948. Defendant secured an interlocutory decree of divorce from plaintiff on July 24, 1952 and a final judgment of divorce was entered on July 27, 1953.
In 1947 both parties filed a joint petition in the Superior Court of San Bernardino County for the adoption of William Harold Shook, now named Michael John Coughlin. This proceeding was numbered action 18030 in said court. In 1952, after the entry of the interlocutory decree, defendant filed his individual petition for the adoption of the said child in action number 22723 in said court. This petition was granted by the court on December 5, 1952, and action number 18030 was dismissed by the court. Notice of the dismissal of this action and of the granting of defendant's petition for adoption was not given to plaintiff. Within six months thereafter plaintiff filed notice of motion to vacate the order of adoption in said action number 22723 and also filed a notice of motion to vacate the order dismissing the joint petition in action number 18030. These motions were denied by the court on September 18, 1953.
While it is alleged in the complaint that plaintiff filed an appeal from the order denying her motion in action number 22723, the record does not support this statement. It is stated in respondent's reply brief that it was stipulated at the hearing on the demurrer that no appeal had been taken from this order and in appellant's opening brief she states that she did not appeal in that matter, believing that she was a stranger insofar as action number 22723 was concerned. [1] By moving to vacate the order granting defendant's petition in action number 22723, plaintiff made herself a party to that action and was entitled to appeal from the order denying her motion therein. ( Title Ins. Trust Co. v. California Dev. Co., 159 Cal. 484, 488 [ 114 P. 838]; Luckenbach v. Laer, 190 Cal. 395, 398 [ 212 P. 918]; Greif v. Dullea, 66 Cal.App.2d 986, 993 [ 153 P.2d 581].) Having failed to appeal from the order denying her motion in action number 22723, the order of adoption made therein has become final and has become res judicata. [2] That defense was open to defendant by general demurrer. ( Hooker v. East Riverside Irr. Dist., 38 Cal.App. 615, 619 [ 177 P. 184]; Orwitz v. Board of Dental Examiners, 55 Cal.App.2d 888, 890 [ 132 P.2d 272].)
It is further alleged in the complaint that Judge Carl Hilliard who granted defendant's petition for adoption in action number 22723 was disqualified. However, the record does not sustain this allegation and this contention was decided adversely to appellant by this court in In the Matter of the Adoption of Shook, 4th Civil Number 4788, decided on December 1, 1954. ( Ante, p. 287 [ 276 P.2d 839].) Likewise the contention that appellant was entitled to notice of dismissal in action number 18030 was decided adversely to appellant therein.
We conclude that the demurrer was properly sustained.
Judgment affirmed.
Barnard, P.J., and Griffin, J., concurred.