18 P.2d 61 | Cal. | 1933
Defendant appeals from a judgment vacating and setting aside a certain final decree of divorce theretofore entered in an independent action between the parties hereto. We need not pause to discuss the grounds warranting such relief, for admittedly the vacated divorce decree was the product of extrinsic fraud practiced by the appellant herein. Appellant's sole contention upon this appeal is that respondent has misconceived her remedy. It is the appellant's theory that having discovered the fraud within one month after the entry of the decree affected thereby, respondent should have moved to vacate in the divorce action, either under section 473 of the Code of Civil Procedure or by a motion addressed to the inherent jurisdiction of the court to purge its records of judgments and decrees fraudulently procured. The existence of these asserted "exclusive" legal remedies is said to preclude the institution and prosecution of the present equitable action. With this contention we cannot agree.
[1] It is settled that equity will relieve an injured party from the effect of a judgment procured, as was the decree here vacated, by extrinsic fraud. (Sohler v. Sohler,
That a motion to vacate may be made in the principal action independent of and subsequent to the period prescribed in section 473, supra, does not suggest a different conclusion. The remedy by way of equitable action, if seasonably pursued, as is the case here, is still available to the injured party. (Aldrich v.Aldrich,
The judgment is affirmed.
Curtis, J., Preston, J., Langdon, J., Thompson, J., Shenk, J., and Seawell, J., concurred. *219