granted, plaintiff appeals from the ensuing summary judgment in defendant’s favor determining interests to certain residential property in La Crescenta.
Defendant (also referred to as “Emmett”) is the brother of John P. Seltzer, now deceased, from whom Emma, plaintiff herein, was awarded an interlocutory decree of divorce in December of 1963. Such decree, pursuant to stipulation of the parties, included the following “orders”: Emma shall have exclusive use of the property, found to be held in -joint tenancy, until the youngest of their children reaches the age of 21, after which time it shall be sold and the proceeds equally divided; and each party shall pay one-half of the taxes, costs of reasonable repairs and insurance premiums, all “until further order of Court.” Seven months later, in July of 1964, John conveyed his interest in the property to- his brother, Emmett, defendant herein, assertedly for $2,000. In November of the same year, and before the expiration of the time within which either party could apply therefor, Emma secured an order requiring her husband to show cause why he should not be restrained from obtaining a final decree until an adjudication of her claim, set forth in the application for such order, that John had concealed some $7,000 in community assets. Although more than eight witnesses were subpoenaed, no evidence of concealed assets was produced at the hearing and the show cause order was discharged.
Following the discharge of such order, and pursuant to the agreement of counsel for both parties, John submitted both himself and his records to a private examination by Emma’s then attorney. By letter her attorney thereafter advised Emma that there was insufficient evidence to proceed further absent new evidence supportive of her claims. A final judgment of divorce was thereafter entered (January 11, 1965) without any modification of the material provisions of the interlocutory decree; this was done prior to John’s death.
The foregoing matters are set forth in an affidavit of Emmett’s attorney supporting his motion for summary judgment in the instant proceeding which was initiated by Emma on March 3, 1966, some seven months after John’s death. No counteraffidavits were filed. By her complaint, Emma sought judgment setting aside the conveyance to Emmett upon the grounds of fraud and lack of consideration (first cause of *140 action), declaratory relief adjudging her interests in and to the property (second cause of action), and judgment impressing a constructive trust in her favor on certain designated items of community property conveyed by John to Emmett (third cause of action). By the summary judgment here challenged the court adjudged that defendant prevail as to the first and third causes of action; as to the remaining (second) cause of action, it was adjudged that “the parties are to abide by all the terms and conditions of the Interlocutory Decree of Divorce” entered on the date in question.
Plaintiff contends that the declaration and affidavit in support of the challenged judgment do not comply with the statutory requirement that as to facts stated therein “affiant, if sworn as a witness, can testify competently” (Code Civ. Proc., § 437c); too, that the affidavit of defendant’s attorney-contains averments which, being in the nature of hearsay, are not the best evidence of that which transpired on the order to show cause. Such argument, of course, invokes the established rule that because of the drastic nature of the relief sought, the affidavit of the. party moving for summary judgment must be strictly construed, while a liberal construction must be accorded any affidavits in opposition.
(R. D. Reeder Lathing Co.
v.
Allen,
The latter of the above two claims, the sufficiency of the supporting papers, will be disposed of first. The affidavit of defendant’s attorney, Edward P. Hart, recites that he was at all times the attorney of record for Emmett’s brother John in
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the divorce action previously referred to. Attached thereto are copy of the interlocutory judgment, copy of the order to show cause and copy of the application for a subpoena duces tecum;
1
also the affidavit refers to such prior action by title and court number. Accordingly, matters in the file of that proceeding were not only subject to judicial notice in the trial court
(Martin
v.
General Finance Co.,
Emma’s first cause of action sought to set aside her husband’s conveyance of his joint tenancy interest in the property to Emmett upon the ground of fraud, while the third cause of action asks the imposition of a constructive trust on various and sundry community assets, excluding (it should be noted) the above joint tenancy interest. Since there can be but little doubt that the trial court applied the doctrine of collateral estoppel in reaching its determination as to these two causes of actions, plaintiff argues that it was error to do so. She cites
Krupp
v.
Mullen,
Plaintiff mistakenly argues that the italicized language imposed certain restraints on John’s power to dispose of his
interest;
fairly interpreted, the provision does not permit such, construction. Since the form of decree was the work of plaintiff’s then attorney, it should be construed most strongly against the interpretation now urged; too, if it had been the
*143
intention of the parties so to be governed, the decree could well have provided (instead of the language actually used) that “the property should be sold
by the parties to this action.”
Having acquired by purchase an interest in the matter affected by the interlocutory judgment, Emmett was clearly in privity with John. Too, in
Bernhard
v.
Bank of America,
The first cause of action sought the invalidation of John’s cqnveyance to Emmett; since the character of the interest thus conveyed was adjudicated by a judgment which has long since become final and since, for reasons stated above, such conveyance had legal sanction, no good purpose could, be served by litigating the issue therein presented any further. The second cause of action sought a declaratory judgment respecting plaintiff’s interest in the same identical property. The summary judgment in the instant proceeding declared such interest by reciting that “the parties are to abide by all the terms and conditions- of the Interlocutory Judgment of Divorce entered December 3, 1963. . . .” It is no answer for
*144
plaintiff to assert, as she does, that Emmett was not a party to the divorce action and has been improperly “injected” into this proceeding. It is Emmett who, under the circumstances, might have a complaint, but he has accepted the judgment thus rendered. As to the third cause of action, we are persuaded that plaintiff is simply seeking to relitigate the matters considered upon the order to show cause hearing held in December of 1964 and referred to in the affidavit of defendant’s counsel. Such document so alleges and the allegations therein "are not denied. While it is true that any doubt as to whether summary judgment should be granted should be resolved against the moving party
(Johnson
v.
Banducci,
Plaintiff makes the further claim that the form of the supporting papers is deficient. Emmett’s declaration is said to be inadequate because it does not contain the words " if sworn as a witness he'could testify competently” to the document’s contents. But it is also stated therein that “the foregoing facts are true of his own knowledge,” and it has been held such language meets the requirements of the statute.
(Schessler
v.
Keck,
The judgment is affirmed.
Wood, P. J., and Thompson, J., concurred.
Involving property held hy a husband and wife as joint tenants and cited in
Meyer
(p. 28, fn. 3) is
Burke
v.
Stevens,
Exeept for such stipulation, the court would have been powerless to so provide.
(Miller
v. Miller,
Notes
The application for the issuance of a subpoena duces tecum declares that community assets have been fraudulently concealed by John and that the production of his books, records, financial statements and other designated documents will indicate where such assets are located and in what form they exist.