Garcia v. Garcia

VALLÉE, J.

Appeal by defendant wife from an order denying her motion under section 473 of the Code of Civil Procedure to set aside her default and to vacate an interlocutory decree of divorce, and from the judgment.

The chronology of the case is as follows:

August 19, 1949,

plaintiff husband filed an action for di

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vorce against defendant. The complaint alleged that the parties married on August 17, 1940, and separated on April 17, 1949, and that there was one child, a boy, aged 4; the existence of community property, consisting of two parcels of real property, household furniture, and a truck; that defendant had been guilty of cruelty; that the boy “is now in the custody of plaintiff”; and that plaintiff is, and defendant is not, a fit person to have custody of the boy.

August 25, 1949,

copy of complaint and summons was personally served on defendant.

January 27, 1950,

defendant’s default was entered.

March 8, 1950,

interlocutory judgment of divorce was awarded plaintiff by Judge Jefferson, giving him custody of the minor child, and all of the community property, except the household furniture and furnishing awarded defendant.

March 20, 1950,

defendant served with copy Of interlocutory decree.

April 3, 1950,

defendant filed notice of motion to set aside default and default judgment on the ground of mistake, inadvertence, surprise and excusable neglect (Code Civ. Proc., § 473), and to file her answer and cross-complaint. The matter was heard upon defendant’s affidavit, her proposed answer, and upon the counteraffidavits of plaintiff’s attorney and one Nelson, a real estate broker. Plaintiff did not file a counteraffidavit.

April 21, 1950,

motion to vacate and set aside default'judgment and for leave to file answer and cross-complaint was denied by Judge McKesson.