Trujillo v. Trujillo

THOMPSON, J.

An interlocutory decree of divorce was entered November 21, 1944, against the defendant on the ground of extreme cruelty. An infant child was awarded to the custody of plaintiff. She was also granted $140 per month for maintenance of the child, and attorney’s fees. Upon notice the defendant on December 19, 1944, moved to set aside the interlocutory decree and his previous default, with leave to appear and answer the complaint, under section 473 of the Code of Civil Procedure, on the ground of plaintiff’s alleged failure to serve him with process. At the same time he also moved for a change of place of trial. The motions were heard on affidavits of the respective parties. The evidence was conflicting on the question of previous service of summons and complaint. January 18, 1945, the motions were denied. The defendant gave-notice of appeal January 22, 1945, from the interlocutory decree, from the order awarding plaintiff custody of the child and maintenance, from the entry of default and from the order denying the motion to vacate the interlocutory decree.

The appeal from the interlocutory decree was perfected within sixty days from the time of entry as required by section 939 of the Code of Civil Procedure, estimated pursuant to section 12a of the same code. That decree was entered November 21, 1944. Thanksgiving Day, which was proclaimed by both the President and the Governor, was included in the period of limitation. That holiday had the effect of extending the time one day. (Code Civ. Proc., § 12a, subd. (b).) The last day therefore fell on Sunday, January 21st,

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which extended the time, under that section, to the following day, upon which the notice of appeal was actually filed. The appeal from that decree was therefore not too late.

The separate preliminary order, made October 20, 1944, awarding the custody of the minor child to plaintiff pending the action, was not appealed from within sixty days thereafter. Assuming, without so deciding, that an appeal lies from that order, no appeal was perfected until January 22, 1945, which was too late to become effectual.

The validity of the default of the defendant is involved on the appeal from the order denying the motion to set it and the interlocutory decree aside under sections 473 and 473a of the Code of Civil Procedure for alleged failure to serve process of the action on the defendant as required by law. There is no appeal from the mere entry of default, but the validity of that proceeding will be determined by our disposition of the appeal from the order denying defendant’s motion to set the interlocutory decree aside for mistake, inadvertence and lack of notice of the pendency of the divorce suit.