115 P. 761 | Cal. Ct. App. | 1911
This is an appeal from an order denying a motion to vacate a final decree in an action for divorce.
The plaintiff brought an action against the defendant for a divorce. Jurisdiction of the defendant was acquired by publication of the summons, and, having failed to appear or answer within the time allowed by law, her default was entered, and subsequently, to wit, on October 11, 1907, after trial, the court found that the plaintiff was entitled to a divorce from the defendant, and accordingly, on that day an interlocutory decree in his favor was regularly entered.
In April, 1908, defendant learned of the entry of this decree, and, desiring to resist the divorce proceedings, she employed an attorney for that purpose in the month of September following. Immediately prior to October 7, 1908, it appears that defendant's attorney prepared an affidavit of merits and a notice of motion to permit the defendant to answer to the complaint, but that upon applying for an order shortening the time for the service of such notice of motion, he was advised, it seems, by the trial judge that no showing of merits or notice of motion was necessary to enable the defendant to answer. The attorney, acting upon this advice, failed to serve or file his notice of motion, but instead took a minute order on said seventh day of October, purporting to permit defendant to answer; and on that day an answer, denying the material allegations of the complaint, was in fact served and filed.
On October 19, 1908, more than a year having elapsed since the entry of the interlocutory decree, the court, disregarding the answer on file, granted the plaintiff a final decree of divorce.
Subsequently, on December 31, 1908, the defendant moved to set aside the final decree on the ground that she "was surprised by the action of the court in granting the final decree, and upon the ground that the final decree was void for the reason that the interlocutory decree had been set aside and vacated." *730
Delay and carelessness characterize all defendant's conduct in this proceeding. According to an affidavit filed on behalf of plaintiff, the defendant knew of the pendency of the action immediately after it was commenced, and was fully advised at that time by her former attorney concerning her rights in the matter. According to her own showing, she knew of the entry of the interlocutory decree in the month of April, about six months after the entry thereof, and failed to seek the aid of counsel until the following September, and she made no proper motion for any purpose until December 31, 1908, more than a month after the final decree was granted and regularly entered. Moreover, the trial judge denied, at least by implication, that he had advised defendant's attorney that no notice of motion to be permitted to file an answer was necessary.
In view of this showing it might well be held that the defendant was guilty of laches, and therefore not entitled to the benefit of the clause of section
Coming now to the last ground of the motion, namely, that the final decree was void for the reason that the interlocutory decree had been set aside and vacated, this interlocutory decree was never in terms set aside. But even if it be conceded that the filing of an answer with the permission of the court was in effect tantamount to an order vacating this decree, still such order would be void, having been made without notice to the plaintiff. Certain it is that a decree valid on its face cannot be set aside without notice and a hearing. (Code Civ. Proc., sec.
The other ground of defendant's motion is equally untenable. One of the clauses of section
The time for taking an appeal from a decree of divorce, or for making a motion under the provisions of said section
The order appealed from is affirmed.
Hall, J., and Lennon, P. J., concurred. *732