159 P. 426 | Cal. | 1916
Defendant appeals from an adverse judgment.
The action was one in which plaintiff sued for divorce on the ground of cruelty. On October 7, 1913, the default of defendant, Annie McDonald, was entered. Thereafter she gave notice of motion for an order setting aside the default and for a further order dismissing the action, announcing *176 that the motion for the order opening the default would be based upon the ground of her excusable neglect, inadvertence, and surprise, while the other relief would be demanded upon a showing of condonation occurring since the commencement of the action. The notice of motion was accompanied by an affidavit of Annie McDonald in which she deposed that she and the plaintiff had lived together after the commencement of the suit for divorce and had agreed to dismiss said action; that depending upon plaintiff's promise to dismiss the suit she did not cause an answer to be filed; and that she had "fully and fairly stated the facts" in the "action" to her counsel, who advised her that she had "a good and meritorious defense to said action." The motion came on for hearing on October 15, 1913. Defendant was called and examined upon her affidavit, and plaintiff and another witness were called and examined, and the court made an order denying the motion to set aside the default. To this defendant excepted upon the grounds that said order was an abuse of the court's discretion, that it was in excess of jurisdiction, and that it was against law.
On October 20, 1913, the cause came on regularly for trial, both parties to the action being represented by counsel and the defendant being personally in court. Judgment was given for plaintiff as prayed and an interlocutory decree was made and entered.
Defendant insists that upon a motion to open a default it is not permissible to inquire into the truth of an affidavit of merits, citing Francis v. Cox,
An application of this kind is addressed to the sound legal discretion of the court, and its action in granting or denying the prayer of the petitioner will not be disturbed on appeal unless a clear abuse of such discretion is shown. (Morton v. Morton,
The judgment is affirmed.
Lorigan, J., and Henshaw, J., concurred.
*178Hearing in Bank denied.