Gordon v. Gordon

[232]

SHINN, P. J.

This is an appeal from an order granting plaintiff a new trial in an action for divorce.

On June 10, 1954, plaintiff, through her then attorney, A. A. Goldstone, filed an action for divorce charging defendant with extreme cruelty. She sought all the community property, reasonable support for herself and their minor son, and custody of the child. Defendant answered and cross-complained, likewise seeking custody of the child and all the community property. Plaintiff answered the cross-complaint.

On September 16, 1954, Lester, defendant’s counsel, filed a memorandum for setting for trial, which was served by mail on Attorney Goldstone. By minute order entered December 27, 1954, the case was set for trial on April 7, 1955. Notice of trial was served by mail on Attorney Goldstone on December 29, 1954, and filed on December 31, 1954. Upon receipt of the notice, Goldstone notified Attorney Lester that he no longer represented plaintiff, that plaintiff was being represented by Jerry Giesler, and that he had forwarded the notice to Giesler’s office. On January 3, 1955, Attorney Lester learned from Giesler’s office that Mr. Giesler was not representing plaintiff and that she was appearing in propria persona. Two substitutions of attorneys, from Goldstone to Giesler, and from Giesler to plaintiff, were filed on December 31, 1954, but neither was served on Attorney Lester.

On March 25, 1955, Attorney Lester caused another notice of trial to be mailed to plaintiff, in propria persona, at 300 North Garfield, Alhambra, California, which was the business address of plaintiff’s mother’s employer. An affidavit of service by mail was filed on April 7th, the case was called for trial in the master calendar department, and plaintiff having failed to appear, it was transferred to the short cause department to be heard as a default matter. Attorney Lester informed the court below that “although I gave notice of trial, nobody appeared.” The court thereupon proceeded to hear evidence on defendant’s cross-complaint, and at the conclusion of the testimony granted defendant an interlocutory decree, awarding him the community property, including all real and personal property, and custody of the two-year-old child. The decree recites,

inter alia,