Berset v. Berset

SHINN, P. J.

Defendant appeals from a default judgment which awarded plaintiff a divorce, custody of a 5-month-old child, $75 per month for support of the child, $1.00 per month for her own support, attorneys’ fees and costs, and the community property, consisting of $350 worth of furniture and a life insurance policy for $1,700. He also appeals from an order denying his motion to vacate his default.

As concerns the judgment respondent concedes that a certain provision, to be mentioned later, granted relief in excess of the demands of the complaint, and should be stricken.

[686]

Summons was issued October 24, 1952; personal service was made on defendant and summons was returned November 17, 1952. Default was entered November 20, 1952. On January 16th notice was given of a motion to be heard January 23d to vacate the default. The matter was heard on defendant’s affidavit. It was averred that prior to service of summons and complaint defendant had petitioned the children’s court of conciliation for a hearing “in an attempt to save the marriage of the parties to the within action.” A hearing was had November 24th; the result of the hearing was not stated; defendant understood that it was not necessary to answer the complaint; he was upset and nervous; “[t]hat in addition thereto defendant had no confidence in his ability to decipher legal jargon and believed that the summons contained same and that he would not understand same even if it were read by him; . . . [t]hat affiant is informed and believes that he has good and meritorious defense to the above entitled action after being so informed by his attorneys, Guerin & Guerin, after having related the facts concerning same to said attorneys, and said defendant is informed and believes that he has a good and meritorious cross-complaint in said action, based upon the foregoing relation by him of the facts of the instant action to his attorneys and their advising him thereof. ’ ’ With the motion defendant tendered a proposed answer and a cross-complaint. In both he accused plaintiff of cruelty and desertion and by the cross-complaint he sought a divorce, custody of the child and an award of the community property.

Although it is our opinion that the ends of justice are better served when the court has an opportunity to hear both sides of the controversy, especially in divorce cases, it does not follow that every failure of a defendant to answer the complaint in a divorce case is legally excusable.