Comey v. Comey

Annotate this Case
[L. A. No. 16039. In Bank. March 18, 1937.]

JESSIE E. COMEY, Appellant, v. ALBERT ALLISON COMEY, Respondent.

COUNSEL

A. P. Michael Narlian and William E. Prather for Appellant.

David R. Faries, McIntyre Faries and J. Clifford Argue for Respondent. [8 Cal. 2d 454]

OPINION

WASTE, C.J.

Motion to dismiss or affirm order. Three prior appeals (Nos. L. A. 15925, L. A. 15789, and L. A. 15848), growing out of this cross-action for divorce, have already been dismissed by this court, as hereinafter shown. The present, fourth, appeal is from an order denying allowance of additional attorneys' fees, costs, and alimony pending appeal. Defendant asks that this appeal also be dismissed.

The first appeal, from the interlocutory judgment, was dismissed because of failure to file a transcript within the required time. The second appeal, from an order refusing to vacate the judgment and grant a new trial under section 953e of the Code of Civil Procedure, and the third appeal, from the order terminating proceedings for preparation of clerk's and reporter's transcript, were, and each was, dismissed for the following reasons: There was a lack of diligence on the part of plaintiff in attempting to procure a record on appeal during the lifetime of the reporter; the latter's death made it impossible to secure a satisfactory reporter's transcript; plaintiff did not even seasonably procure and file a clerk's transcript, which would have supported a judgment roll appeal; and, lastly, there was no showing whatever of abuse of discretion on the part of the court below in making the orders appealed from.

[1] The present appeal is from an order denying plaintiff's application for additional attorneys' fees, alimony and costs on appeal. The granting or denial of this application was a matter resting in the sound discretion of the trial court, and its conclusion will not be disturbed unless there is a showing that the court abused such discretion. (Kellett v. Kellett, 2 Cal. 2d 45, 48 [39 PaCal.2d 203]; Gay v. Gay, 146 Cal. 237, 240 [79 P. 885].) The record before us contains no showing whatsoever of abuse of discretion. The transcript, a clerk's transcript, contains merely the affidavits in support of and counteraffidavits opposing the application for additional attorneys' fees, alimony and costs. These affidavits are in sharp conflict. However, the showing made in the counteraffidavits, considered in connection with the history of the three prior appeals, affords ample support for the conclusion that the court below exercised a sound discretion in making its order denying plaintiff's application. The motion was evidently made for the purpose of recouping costs and expenses [8 Cal. 2d 455] already incurred in the prosecution of the three appeals here noted as having been dismissed. This appeal is without merit.

The order appealed from is affirmed.

Curtis, J., Langdon, J., Edmonds, J., Shenk, J., Seawell, J., and Thompson, J., concurred.