Hirsch v. Hirsch

California Court of Appeal May 3, 1946 No. Civ. 15244Published

Before: Moore

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Holding. The court held that a trial court has the inherent power to vacate an order obtained through extrinsic fraud, regardless of the limitations of Code of Civil Procedure section 473. The concealment of a pending attorney discharge and the plaintiff's bigamous marriage constituted extrinsic fraud justifying the annulment of the counsel fee order.

Issues

Whether a trial court has the inherent power to vacate an order obtained through extrinsic fraud.
Whether the concealment of an attorney's pending discharge and the existence of a prior undissolved marriage constitute extrinsic fraud sufficient to vacate an order for counsel fees.

Disposition. affirmed

Quotations verified verbatim against the opinion

“An order or judgment obtained through the practice of extrinsic fraud may be vacated at any time while the trial court has jurisdiction thereof.”

“Concealment, on the date of the hearing, of the impasse already reached by appellant and his client was such an extrinsic fraud as justified annulment of the order.”

MOORE, P. J.

In the preliminary stages of this divorce action an order was made on March 26, 1945, hereinafter referred to as the March order, for the payment by defendant of $500 counsel fees to appellant as attorney for plaintiff. The sum was to be payable in equal monthly installments of $50. On October 5 defendant filed his motion to modify and vacate such order on the grounds (1) that the consideration for the order had failed and (2) that the court had misapprehended the facts. The motion was supported by an affidavit of counsel for respondent who averred (1) that there was a change in the relations of the parties immediately subsequent to the order in that plaintiff had taken steps to discharge appellant and upon the following day or very shortly thereafter and previous to the performance of any part of the work by appellant he was (April 6, 1945) substituted out of the case in favor of other counsel; and (2) that prior to her marriage to defendant plaintiff had entered into a legal matrimonial alliance with one Murphy at Las Vegas, Nevada, and had never been divorced from him. Following a hearing the court on October 18 vacated the March order by reason of the facts alleged in the supporting affidavit. The validity of the October order is the question posed by this appeal.

Such order is in no sense governed by section 473, Code of Civil Procedure. That section authorizes relief from an order taken against the moving party “through his mistake, inadvertence, surprise or excusable neglect. ’ ’ The

authors of that section had in contemplation no class of moving parties other than one of those encompassed by the language last above quoted. They did not intend by that statute to circumscribe the inherent powers of the courts but rather to enlarge such powers. Had they designed to designate all situations in which the courts might relieve a party from an order they would have named

fraud

along with excusable neglect. But since the power to annul an order procured by means of fraud is inherently vested in the courts its mention

[393]

would have been calculated to limit the jurisdiction of

nisi prius

Hirsch v. Hirsch

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MOORE, P. J.

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