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GRAY, P. J. This is an action for per- With reference to this instruction, we quote sonal injuries to plaintiff, incurred in a col- from the opinion of the trial court as follision between a locomotive of defendant lows: "Section 19 of article 6 of our state and a span of horses and wagon driven by Constitution provides: ‘Judges shall not plaintiff at a street crossing in the town charge juries with respect to matters of fact of Burbank in Los Angeles county. The but may state the testimony and declare verdict was for the defendant, and the de- the law.' The rate of speed under the fendant appeals from an order of the court circumstances of the case was a question granting plaintiff a new trial.

of fact and not a question of law. It was The testimony of the plaintiff as a wit- one of the ingredients of negligence charged ness in his own behalf was in effect as fol- against the defendant by the plaintiff. The lows: Plaintiff and his father were driving court could not say, as a matter of law,under into the town of Burbank in a two-horse the circumstances of the case, that it was wagon on Verdugo street. About 300 feet not negligent for the defendant to run its from defendant's track they discovered a engine at so great a rate of speed." We horse fast in a wire fence. They stopped think this is sound, and that the new trial there, and both went to the relief of the was properly granted, for the reason given horse. Finding it necessary to cut the wire, by the trial court. that the horse might be released, the plain

It will be needless to discuss any other tiff returned to the wagon and drove in a points raised in the briefs, for the reason walk in the direction of the railroad track, that they may not arise upon a new trial intending to cross the same for the purpose

of the case. of obtaining some wire nippers. When he The order appealed from is affirmed. reached the wagon he looked and listened to learn whether any trains were approach- We concur: ALLEN, J.; SMITH, J. ing. He could hear none and see none "on account of the boxcars that were along the side track between the main track and the

(4 Cal. App. 108) section houses, and the shade trees around

FREEMAN v. BROWN. the section houses, and also the drying (Court of Appeal, Second District, California. plant." As he proceeded toward the track

July 12, 1906.) he kept up a diligent looking and listening APPEAL — ORDERS APPEALABLE — MOTION FOR

NEW TRIAL AMENDMENT OF STATEMENT. for trains. IIe had no view of the track un

An order denying defendant's motion to till he emerged from between two box cars

amend his statement on motion for a new trial standing on the side track only a few feet by inserting specifications therein, under Code from the main track. Ile knew the next

('ir. Proc. § 473, providing for the amendment

of pleadings, is appealable. train due would be from the south, and accordingly, as soon as he could see the Appeal from Superior Court, Los Angeles track he looked in that direction, and, see- County; Walter Bordwell, Judge. ing no train, looked the other way, discover- Action by J. W. Freeman against Robert ing a "wild" locomotive approaching at a A. Brown. From an order denying defendspeed of some 3.7 miles an hour without ant's motion to amend his statement on mogiving any warning of its approach with tion for a new trial, he appeals. On motion bell or whistle. He was then very near the

to disiniss. Denied. track, and, as he says, “I was terribly ex- George L. Keefer and Walter L. Bowers, for cited to find myself in such peril, and my appellant. II. M. Barstow and Barstow & first thought was to get across and get | Variel, for respondent. out of the way, and I jumped forward into the wagon and tried my best to get across, PER CURIAM. This is an appeal from an and come nearly getting across, and the order denying the defendant's motion to engine got the back end of the wagon and amend his statement on motion for a new hurled it into the air." Ile also says: trial by inserting specifications therein. The "There was no time from the time I started plaintiff moves to dismiss the appeal on the across the railroad track when I was not ground that the order is not appealable. looking and listening for that train." There Appellant by his motion and application was other evidence tending to show that sought relief under section 473, Code Civ, the bell was sounded and warning duly Proc. The order denying such relief is apgiven on approaching the crossing, and other- pealable. Murphy V. Stelling, 138 Cal. 642, wise conflicting with the foregoing.

72 Pac. 176; Kaltschmidt v. Weber, 136 Cal. The new trial was granted because of an 675, 69 Pac. 497. instruction given to the jury, which reads Motion to dismiss is denied. as follows: "If you find that the engine was running at the rate of 35 miles an hour, that SMITII, J. I concur in the order denying fact does not establish negligence upon the the motion to dismiss the appeal in this case, part of defendant, because no duty rested and also in the opinion that the decision in upon it to run its train or engine at a less Murphy v. Stelling, 138 Cal. 642, 72 Pac. 176, rate of speed at the point in question.” is directly in point. But I regard that case as merely an application of the more general tion for modification, the court found that deprinciple that all orders made in proceedings

fendant was entitled to an order modifying the for a new trial which have the effect of final

decree and exempting him from payment of any

allowance to plaintiff until further order of the ly disposing of the motion are special orders court. An order was subsequently entered that made after final judgment, and therefore ap

the decree "be, and the same is, hereby modified pealable. Hayne on New Trial, § 116; Cal

by annulling" that portion thereof directing pay

ment of such alimony. Held, that the portion of derwood r. Peyser, 42 Cal. 115, and cases (ited;

such decree annulling so much of the former McDonald v. McConkey, 57 Cal. 320; Clark decree as awarded alimony was erroneous and v. Crane, 57 Cal. 633; Griess v. State Invest

in excess of the court's jurisdiction. ment Co., 93 Cal. 411, 28 Pac. 1041; Stone

[Ed. Note.-For cases in point, see vol. 17,

Cent. Dig. Divorce, $8 92-95.] esifer r. Kilburn, 91 Cal. 12, 29 Par. 332: Sutton v. Symons, 97 Cal. 476, 32 Pac. 388; Id., Appeal from Superior Court, Alameda 100 Cal. 576, 35 Pac. 158; Symons v. Bun- County; II. A. Melvin, Judge. nell, 101 Cal. 223, 35 Pac. 770; Kaltschmidt Suit by Ella Bacon Soule against Frank v. Weber, 1:36 Cal. 675, 69 Pac. 497; Jurphy Soule. On petition of defendant for modificav. Stelling, 138 Cal. 611, 72 Pac. 176. This, tion of a decree awarding plaintiff alimony. however, as said in the case last cited, will From an order granting such relief, plaintiff not apply to a mere refusal of the court to appeals. Modified and affirmed. settle the statement in cases where the mov

Lloyd & Wood and A. Heynemann, for aping party is by law entitled to have it set.

pellant. Deamer & Stetson, for respondent. tled. In such a case there is no order, and therefore the only remedy is mandamus.

HARRISON, P. J. A decree of divorce be

tween the parties herein was rendered by the (+ Cal. App. 97)

superior court of the county of Alameda DeSOULE V. SOULE.

cember 19, 1896, of which the following is a

portion: "It is further ordered, adjudged, (Court of Appeal, First District, California.

and decreed by this court that the defendant July 12, 1906.)

shall pay to the plaintiff the sum of $75 per 1. DIVORCE-DECREE FOR ALIMONY-MODIFI

month in United States gold coin for her CATION JURISDICTION.

Civ. Code, $ 139, provides that, where a support, which said sum of $75 shall be divorce is granted for an offense of the husband, payable on the 5th day of each and every the court may compel him to make a suitable month and shall be perinanent alimony.” In allowance to the wife for her support during August, 1903, the defendant therein, in purher life or for a shorter period, and may from time to time modify its orders in such respect. suance of previous notice thereof, moved the Hold that, where a divorce decree awarded plain- court for an order vacating and annulling tiff alimony at the rate of $75 per month, the

the above portion of the judgment, and recourt had statutory authority to modify the decree so as to relieve defendant from further pay

leasing him from the payment of any furment of such alimony, though the decree con- ther sums under the provisions of the detained no reservation for such modification. cree, stating generally as the grounds of his [Ed. Note.-For cases in point, see vol. 17,

motion that the circumstances of the parties Cent. Dig. Divorce, $ 692.]

to the judgment had materially changed since 2. SAME-CONSENT DECREE-EVIDENCE.

its rendition; that he was unable further to In a proceeding by a husband to obtain a modification of a decree for alimony, evidence continue said payments, and that the plaintiff held insufficient to establish that the provision had no need of support from him; that it for alimony was inserted pursuant to an agree

was not necessary, just, or equitable that he ment of the parties that the alimony should be paid during plaintiff's life.

be longer required to make any payment for 3. SAME — PERMANENT ALIMONY — MODIFICA

her support; and in connection therewith TION.

presented an affidavit setting forth the facts Permanent alimony, being distinguished relied upon by him in support of said motion. from temporary alimony only in the sense that

The plaintiff filed an objection to the court it is awarded on or after the determination of the suit, is subject to be increased or diminished, entertaining the motion, on the ground that, as authorized by Civ. Code, $ 139.

inasmuch as no appeal had been taken from [Ed. Note.-For cases in point, see vol. 17, the judgment and the time for an appeal had Cent. Dig. Divorce, $$ 692-09.).

expired, the court had no jurisdiction to make 4. TRIAL-FINDINGS BY COURT-EFFECT.

the order asked for. The court overruled this On an application for a modification of

objection, and the plaintiff then filed her affipermanent alimony, the failure of the court to find in accordance with plaintiff's averment that davit in reply to the application, traversing her transfers of property were ma le in consider- many of its averments, and averring that ination of an agreement on defendant's part to

termediate the commencement of the action pay her $75 a month as alimony for the remainder of her life was, in legal effect, a finding that

and the rendition of the decree the defendsuch conveyances were not made on that con- ant agreed with her that, if she would assign sideration.

her interest in certain insurance policies and [Ed. Note. For cases in point, see vol. 10, in certain real estate, he would, in consideraCent. Dig. Trial, $S 910-945.]

tion of such assignment and transfer, pay to 5. DIVORCE – ALIMONY – DECREE-MODIFICA

her the sum of $75 per month as alimony, and TION. A divorce decree awarded plaintiff alimony

that said payment should continue for all in the sum of $75 per month. On an applica- time during the life of the plaintiff ; that she

accepted said proposition and made said assignments; and that the court signed a decree in conformity with such agreement. At the hearing of the motion testimony was given by the respective parties, and by the attorneys by whom the action for divorce had been conducted, and upon its conclusion the court found, among other facts that the plaintiff is a wealthy woman; that her fortune has greatly increased since the making and entry of the decree, and is more than sufficient for her support and maintenance and the support and maintenance of her children; that the defendant is poor and in debt, and that his income has not increased since the making and entry of said decree, but his necessary expenses and the cost of living have increased; that the monthly payment of said sum of $75 to the plaintiff by him works a hardship on him, and is not necessary to the plaintiff for her support and maintenance, or for the support or maintenance of any one depending upon her; that said sum is necessary for the proper support of the defendant and his family. The court also found that prior to the entry of the decree the plaintiff quitclaimed to the attorneys for the defendant her interest in certain of his separate real property (of the value of about $1,500) and in certain community property (of the value of about $400) which he had previously conveyed to them as security for their fees, and transferred to her children, the issue of the marriage between her and the defendant, her interest in a certain paid-up policy of life insurance (her interest therein being contingent upon her surviving the defendant, and in case she did not survive him the policy being payable to the said children); that, as a part of the consideration for the said assignments, it was agreed between the plaintiff and the defendant that the decree in the action should contain the above-quoted provision. The court further found that the defendant did not agree to or with the plaintiff that he would pay the said sum of $75 per month or any sum during her life, or that any sum agreed by him to be paid to her as alimony or allowance was agreed by him to be paid for any period, and that he never agreed to pay to her or for her support any money or allowance for any fixed time, or for or during her lifetime, and never agreed or intended that said decree should be unchangeable in respect to the allowance to her. Upon the facts found by it the superior court held that "the defendant is entitled to an order of the court modifying said decree, and exempting him from the payment of any allowance to the plaintiff until the further order of the court," and directed that an order to that effect be entered. From the order entered thereon the present appeal has been taken.

1. The court had jurisdiction to entertain the application of the defendant notwithstanding his failure to appeal from the judgment. Section 139, Civil Code, declares:

"Where a divorce is granted for an offense of the husband the court may compel him to provide for the maintenance of the children of the marriage, and to make such suitable allowance to the wife for her support during her life or for a shorter period as the court may deem just, having regard to the circumstances of the parties respectively; and the court may from time to time modify its orders in these respects." This statutory provision enters into every decree in an action for divorce which provides for the payment by the husband of an allowance for the support of the wife, as fully as though it should be incorporated into the terms of the decree. The authority of the court to modify its decree in this respect does not depend upon a reservation therefor in the decree itself, but exists by virtue of the statute, and, being conferred upon it by the Legislature, it is beyond its power to divest itself of such authority. Campbell v. Campbell, 37 Wis. 206.

2. The objection that under its power to "modify" its decree the court is not authorized to grant the defendant a temporary exemption or release from the payment of any alimony must be overruled. The section of the Code places no limitation upon the extent to which it may make such modification, the principle upon which the authority is to be exercised being that which determines its original order, viz., that the allowance to be made by the order as modified shall be such as the court may deem just, "having regard to the circumstances of the case.” Under this section it may modify its former order, either by increasing or reducing the amount of money to be paid at any one time, or enlarging or diminishing the frequency with which the payments are to be made. Neither is the authority to modify the decree limited by the section to a mere change in the amount of the allowance to be paid, but it includes a modification of the order in any respect which, under the circumstances of the particular case, may seem just to the court. Under such discretionary authority, it is within the power of the court, not only to change the amount of the allowance, but also to suspend any enforcement of the order until its further direction. That the circumstances of the present case justified the court in modifying the original decree appears from its finding that the monthly payment of $75 is not necessary to the plaintiff for her support or maintenance, but is necessary for the proper support of the defendant, and that the payment thereof works a hardship upon him. The sufficiency of the evidence to sustain this finding is not challenged by the appellant, and, indeed, the fact was itself practically admitted by her merely denying in her answer that her income is "far in excess" of the sum required or sufficient for her maintenance or support. The case of Howell v. Howell, 104 Cal. 45, 37 Pac. 770, 43 Am. St. Rep. 70, is not inconsistent with this rule. In that case there was noth

ing in either the complaint or the judgment , $75 a month as permanent alimony, and that about alimony. The right of the wife to an the decree embodied all that they agreed on. allowance for her support had not been es- Mr. Lloyd also testified that on behalf of the tablished in the decree. It would have been plaintiff he demanded at the commencement competent for her in her action for divorce to of the negotiations an allowance of $150 per ask for such allowance from the defendant, month, that Mr. Whitney protested against but by her choosing to waive such demand it and said that the defendant could not pay she could not assert her claim for alimony | it, and that the plaintiff finally acquiesced after she had ceased to be his wife. The in $75. IIe also testified that Mr. Whitney court held that section 139 clearly contem- never said in substance or effect that the alplates that the right to alimony "shall have lowance should continue during her lifebeen presented and litigated in the action for time; that he said to Mr. Whitney: "If I divorce and established by the judgment, and reduce it down to $75, this is the end of the that when the right to alimony has been thus thing, and it remains that way to be put established the amount may be changed by in here as permanent alimony, and I put it in a modification of the order.” In the present the decree as permanent alimony, fixed and case the right of the plaintiff to alimony was ended between them.” He also stated that established by the decree in her action for di- the decree, together with the quitclaims and vorce, and section 139 gives to the court the the assignment of the insurance policy by authority to modify it.

the plaintiff, embody the whole agreement 3. The chief ground urged in support of between her and the defendant. The decree the appeal is that the provision for alimony was thereupon prepared by Mr. Lloyd, with in the decree was inserted therein by reason the above provision for alimony therein, and of an agreement between the parties that the submitted to Mr. Whitney, who said to him defendant should pay to the plaintiff for her that it was satisfactory; and they thereafter support the sum of $75 per month during went into court, and, upon stating that it her lifetime, and that the finding of the had been agreed upon between them, it was court that such agreement was not made is signed by the judge. Before it was presentcontrary to the evidence. The burden of es- ed to the judge, it was submitted to the detablishing such agreement was upon the fendant by his attorney, and, upon his inplaintiff, and in her affidavit in reply to the quiring the meaning of the words “permanent defendant's application, after stating his

after stating his alimony,” Mr. Whitney stated to him that it agreement to pay $75 per month for her sup- was the same as any other alimony, and port, she stated that he agreed that such might be changed by the court, either by payment "should continue for all time dur- diminishing or abolishing or increasing the ing the life of the plaintiff.” She presented, amount, to which the defendant replied, "On however, no evidence in support of this aver- that understanding it is all right.” The plainment. Upon her oral examination at the hear- | tiff, on the other hand, on asking her attorney ing she stated that she had nothing to do the meaning of the same, was told that it with the making of the agreement and did meant for as long as she lived. It thus very not personally deal with either the defendant clearly appears that there was no agreement or any attorney in his behalf. The defendant between the parties, either by themselves or testified in direct terms that he never agreed through their attorneys, that the defendant to pay any amount of money to her during should pay alimony to the plaintiff throughher life, or authorized any other person to out her lifetime; and it does not appear that make such agreement, and that he never there was any mutual understanding by the heard or was informed that the plaintiff parties that by the use of the term “permamade such claim until her affidavit was read nent alimony" such an agreement was imat the hearing of this motion. Mr. Lloyd, plied, or that the term was inserted in the who was one of the attorneys for the plaintiff provision with any agreement or understandin the action for divorce, and who conducted ing between them that it should have any the negotiations on her behalf on this subject, meaning other than its legal significance. testified that in the only interview with him As it does not appear that the attorneys, or of which he had any recollection the defend- either of them, at any time in their negotiant never made any statement that he would ations stated that the payment was to conpay the allowance to the plaintiff during her tinue during her life, it cannot be contendlife, and that the defendant never used that ed that there was any oral stipulation belanguage; that his negotiations on the sub- tween them of which the terms were so ject were with Mr. Whitney, the defendant's agreed upon that it can be enforced. See attorney, and with the plaintiff ; that prior to Smith v. Whittier, 95 Cal. 279, 30 Pac. 529. the signing of the decree he had several dis- It is equally clear that no agreement of this cussions with Mr. Whitney; and that these nature on the part of either the parties or conversations "led to the agreement in writ- their attorneys was at any time brought to ing which is the decree itself.” Mr. Whitney | the notice or knowledge of the court, and it

testified that he agreed only to what is in is not to be assumed that the court intended

the decree, that he and Lloyd came to an understanding that the plaintiff was to have

to incorporate an agreement into its order unless it is shown that the terms of that agreement were made known to it before the, 92; Anderson's Law Dict. q. v.; Abbott, Law decree was signed. The decree is the act of

The decree is the act of | Dict.; Bouvier, Law Dict. "Permanent alithe court, and any agreement between the mony is alimony awarded on or after the parties, with reference to its provisions that determination of the suit. It is permanent was not made known to the court will have only as distinguished from temporary, for no weight in construing the intention of the it may be increased or diminished.” Stew

Parkhurst v. Parkhurst, 118 Cal. 18, art in M. & D. § 360. That the designation 50 Pac. 9, is inapplicable. In that case the of the amount of alimony awarded to the parties had made and signed a written stip- wife in a decree of divorce as "permanent" ulation that the wife should be awarded the does not preclude the court from a subgreater portion of the property, and be char- sequent modification of the provision has ged with the maintenance and education of been many times declared by the Supreme the infant children at her own expense, and Court. In Ex parte Spencer, 83 Cal. 460, that she should not have any alimony or al. 23 Pac. 395, 17 Am. St. Rep. 266, the court lowance from her husband; and the decree awarded the wife $30 per month "as perwas entered in accordance with the terms of manent alimony," which was afterwards rethis stipulation. The authority given the duced to $25 per month. In discussing the court by section 139 to modify its decree re- subject the court said: "The court is to specting alimony was not involved; the only fix the measure of the compensation by question presented being the right of the 'having regard to the circumstances of the wife under section 138 to its modification in parties respectively'; these circumstances respect to the maintenance and education of furnishing the best means for determining the children. The refusal by the superior such amount. As these circumstances may court to grant the wife's application for a differ at different times the court may from modification of this provision in the decree time to time modify its orders in that re was affirmed by the Supreme Court, upon the spect.'' In Wolff v. Wolff, 102 Cal. 433, ground that it was to be assumed that the 36 Pac. 767, 1037, where a certain amount property was awarded to her for the very had been awarded the wife as permanent purpose of maintaining and educating the alimony in the decree of divorce, the court children, and that it did not appear that they said: "It will always be within the power were not being properly maintained and ed- and discretion of the court to modify the ucated. In Wilson v. Wilson, 45 Cal. 399, allowance of alimony in the future, if just it was held that a prior or contemporaneous cause appear for such modification." See, parol agreement between the parties, the ef- also, Ex parte Ilart, 94 Cal. 254, 29 Pac. 774. fect of which would be to materially vary 5. The failure of the court to find, in ac. the terms of the decree and change the rights cordance with the averments of the plaintiff, of the parties thereunder, could not be shown. that the transfers of property by her were

4. The decree of the court is therefore not made in consideration of an agreement on to be construed as having been based upon the part of the defendant that the payment any agreement, but is to be assumed as hav- by him to her of $75 per month as alimony ing been made upon its own consideration should continue for all time during her life, of the relative situation of the parties—the was in legal effect a finding that they were faculties of the husband and the needs of not made upon that consideration (Thompthe wife; and its effect is to be determined son v. McKay, 41 Cal. 221; Lamb v. Wahin accordance with the legal significance lenmaier, 144 Cal. 91, 77 Pac. 765, 103 Am. of its language under the statutory power St. Rep. 66); and its finding that a part of given to the court by section 139, and, in the consideration therefor was that the dedetermining the extent of this power it is cree should contain the clause above quoted to be borne in mind that, if the decree had is in accordance with the testimony of witprovided that the payment of alimony to the nesses that the only agreement between the plaintiff should continue "during her life," parties was that the decree should provide its modification by the court is expressly that the plaintiff should have $75 per month authorized by that section. The term “per- as permanent alimony. manent” is not the equivalent of "perpet- 6. In its conclusion of law from the facts ual," or "unending," or "lifelong," or "un- found by it the court found that “the dechangeable”; and in using the term “per- | fendant is entitled to the order of the court, manent alimony" in the decree the court modifying the said decree and exempting the

simply designated the character of the ali- defendant from the payment of any allow

mony which it awarded, rather than the ance to the plaintiff until the further order amount to be paid, or the time during which of the court," and directed that "a proper the payment should continue. Alimony which order be entered accordingly.” In the order is awarded by a final decree of divorce is which was subsequently entered thereon it designated as "permanent," in distinction is ordered and adjudged that the decree from that which is awarded during the pend- | be had and the same is hereby modified by ency of the action, which is designated annulling that portion of said decree which as "temporary." Bishop on M., D. & S. 8 is in the words and figures following [re1386; 2 Am. & Eng. Cyc. of Law (20 Ed.) citing the above quoted provision), and it

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