Storke

The superior court rendered a judgment herein which was entered January 18, 1895, by which it was decreed “that the marriage between the said plaintiff and the said defendant be dissolved, and the same is hereby dissolved, and the said parties are, and each of them is, freed and absolutely released from the bonds of matrimony and all obligations thereof; and it is further ordered, adjudged, and decreed that the plaintiff pay to the defendant the sum of two hundred and fifty dollars alimony, and two hundred and fifty dollars counsel fees.” February 12, 1895, the court, upon the application of the defendant setting forth that she desired to move for a new trial, and to appeal from the order denying the same if it should be denied by the court, and that it was necessary to have the testimony written out, and that she had no means to pay for the same, ordered that the plaintiff pay to the defendant on or before the eighteenth day of February, 1895, the sum of three hundred and fifty dollars to defray the cost of transcribing said testimony. The defendant gave notice of her intention to move for a new trial February 12th, and on March 28th, within the time allowed therefor by the…

I dissent from the order denying a rehearing of this case, not because I consider that the propositions discussed in the department opinion are incorrectly decided, but because I think that the plaintiff is estopped by his own acts to ask a reversal of the order appealed from. When that order was made the defendant, at whose instance it was made, became so doubtful of its validity that she deemed it a necessary precaution to take an appeal from the judgment, and that appeal was dismissed by this court, upon motion of the plaintiff on the ground that the judgment having been set aside, there was nothing to appeal from. (Storke v. Storke, 111 Cal. 514 .) Having succeeded in depriving her of a hearing upon the merits of her appeal from the judgment on the ground that there was no judgment in existence when her appeal was taken, the plaintiff has now succeeded in obtaining a decision that the order vacating the judgment was void, and in effect that the judgment has all the time been in full force; or, if this is not the meaning of the decision, the plaintiff has at least succeeded in having the judgment restored to life after the defendant’s right of appeal has been taken away upon…