104 Cal. 494 | Cal. | 1894
Action to vacate and annul an order of the superior court setting apart a homestead to the use of the defendants out of the estate of Richard Comerford, deceased. The facts alleged in the complaint are set forth in the. report of the case when here upon a former appeal. (Wickersham v. Comerford, 96 Cal. 433.) After the cause had been remanded to the superior court the defendants answered the complaint, and upon the trial of the issues the court rendered its decision and judgment against the plaintiff, from which, and also from an order denying a new trial, he has appealed. The court finds that the allegations in the petition of Mrs. Comerford for the homestead were not fraudulent, and that the court was not induced to make the order by reason of any false or fraudulent representations therein contained, or by any concealment of facts from it by her or by any one on her behalf. This finding is challenged by the appellant as not supported by the evidence, but we are of the opinion that the evidence before the court justifies the finding.
It was necessary for the plaintiff to establish by clear and indubitable proof, to the satisfaction of the superior court, that the order setting apart the homestead had been obtained through some fraud practiced upon that court by the defendant. It was not sufficient to show •that she had made the application under an erroneous view of her rights in the premises, or that upon the facts presented in her petition, or at the bearing, the court had mistaken the law applicable thereto. -She cannot be charged with fraud or any fraudulent imposition upon the court for merely failing to state in her petition any facts tending to show that the petition ought not .to be granted, unless it is made to appear that she knew the import of these facts, and that they
Whether the court determined that the property which it set apart was community property or the separate estate of the deceased is not shown by the record. The order purports to have been made upon “the papers on file” and other evidence, and in the inventory on file with the court it was stated to be community property, while the attorney for the petitioner testified at the trial
The court did not err in refusing to grant the motion of the plaintiff for judgment on the pleadings. The matters which were denied on information and belief were not presumptively within the knowledge of the defendants.
The judgment and order are affirmed.
Hearing in Bank denied.