Gould

The petitioner, as the special administrator of the estate of Frank H. Gould, deceased, seeks by prohibition to prevent the superior court and the Honorable E. P. Shortall, one of its judges in San Francisco, from setting aside a final decree of divorce entered after the death of petitioner's intestate. In his lifetime Frank H. Gould was the husband of Nettie Gould. There was one child of the marriage, a daughter who was between sixteen and seventeen years old in October, 1916, when the husband sued for divorce. After answer and cross-complaint the trial resulted in an interlocutory decree of divorce in favor of the wife. It was dated January 19, 1918. The court found there was community property which except as hereinafter stated was not described in *Page 199 the findings. The divorce was granted on the ground of willful desertion by the husband. The decree recited that the parties had agreed in open court "to the division of the community property and the provision for alimony as hereinafter provided." The provisions referred to were that the husband pay the wife as permanent alimony and for her support the sum of seventy-five dollars per month, commencing on January 21, 1918;…

The petition for rehearing is denied. The opinion of the district court of appeal does not mention the decision given by the district court of appeal of the second district filed on October 30, 1919, in Gloyd v. Superior Court, 44 Cal.App. 39 , [ 185 P. 995 ]. In that case a petition for a rehearing was denied by the supreme court. It is claimed in the present petition for rehearing that the opinion in this case is directly contrary to that in the Gloyd case. We think there is a clear distinction between them and one which takes away any apparent conflict. In the Gloyd case the interlocutory decree of divorce was a simple declaration that the husband, who was plaintiff, was entitled to a divorce. It did not purport to adjudicate property rights of any character. It was there held that in such a case, upon the death of the plaintiff during the ensuing year, the superior court lost jurisdiction to proceed further in the case, because the death dissolved the marriage and extinguished the pre-existing marriage status which formed the subject matter of the action, leaving nothing upon which the only final decree that could be made could operate. *Page 204 [9] In the present case the…