
    [L. A. No. 12932.
    In Bank.
    April 19, 1933.]
    ESTHER TALBOT, Respondent, v. HAYDEN TALBOT, Appellant.
    
      Paul W. Schenck, Milton M. Cohen and C. O. Bacon for Appellant.
    William Ellis Lady for Respondent.
   SHENK, J.

This is an appeal by the defendant from an order for the payment of alimony, counsel fees and costs pendente lite in an action for separate maintenance.

The plaintiff alleged that the parties intermarried on September 13, 1922, at London, England, and were and continued to be husband and wife. On the day the complaint was filed an order was issued requiring the defendant to show cause why he should not be required to pay temporary alimony, counsel fees and costs. The order to show cause came on regularly for hearing on October 30th, both parties being present in court and represented by counsel. The matter was then heard, but the determination thereof was continued to November 6th for the filing of briefs. Thereafter, on November 17, 1930, the court made the order from which this appeal is taken. In the meantime, on November 10, 1930, the defendant filed with the clerk an answer in which he denied that the plaintiff and the defendant then were, or ever had been, husband and wife.

The point made by the defendant on the appeal is that to justify alimony, marriage must be admitted or proved, citing Hite v. Hite, 124 Cal. 389 [57 Pac. 227, 71 Am. St. Rep. 82, 45 L. R. A. 793], and that there is no showing to that effect in the present case. In the Hite case relied upon the marriage was denied on the hearing of the order to show cause. Here, the evidence of the plaintiff on the hearing was that the parties had been and continued to be married as alleged in the complaint. The proof on behalf of the plaintiff was sufficient to support the order. The filing of the answer after the matter had been submitted for decision was not sufficient to oust the court of jurisdiction to make the order on the record as it stood when the matter was submitted. (See In re Morgan, 106 Cal. App. 602 [289 Pac. 647].)

On November 6, 1930, the defendant filed as an exhibit certified copies of the complaint, interlocutory decree, and final decree of divorce in an action entitled Joseph Jay Pausner v. Esther Roof Pausner, in the Superior Court in and for the City and County of San Francisco. By these documents it is disclosed that the plaintiff therein was granted a divorce against defendant therein. In that case it appeared that the parties thereto had intermarried at Cleveland, Ohio, on August 23, 1920, and that the final decree of divorce was entered on August 21, 1923.

It is now contended by the defendant that the record in that divorce action conclusively shows that the plaintiff herein was a married woman at the time of her alleged marriage to the defendant herein in September, 1922, and therefore that the essential basis for the present action, namely, the marriage relation, could not exist. The point would be well grounded if there were any showing that the plaintiff in the present action and the defendant in the former action were one and the same person. But there is no such showing whatever in the record, and the order now under attack imports a finding that such was not the fact.

On the proof made by the plaintiff and on the record now presented the order must be affirmed.

It is so ordered.

Seawell, J., Thompson, J., Preston, J., Langdon, J., Curtis, J., and Waste, C. J., concurred.  