Brooding v. Brooding

O’DONNELL, J. pro tem.

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This is an appeal from an order denying defendant’s motion under section 473 of the Code of Civil Procedure to set aside the default and default judgment entered upon the second amended complaint for annulment of the marriage of plaintiff and defendant.

Plaintiff filed an original complaint for annulment. After a demurrer thereto was sustained he filed a first amended complaint which set forth two separate grounds for annulment: (1) That he was of the age of 18 years at the time of his marriage and that the marriage was entered into without the written consent of plaintiff’s parents; and (2) That plaintiff’s consent to the marriage was obtained by force. Defendant filed an answer to the first amended complaint in which she denied all its material allegations. She also filed a cross-complaint for divorce. Plaintiff answered the cross-complaint. Thereafter, plaintiff filed a second amended complaint. Defendant did not answer or otherwise plead to the second amended complaint. Her default in that regard was entered by the clerk and thereafter a default judgment annulling the marriage on the ground that plaintiff was under age. and lacked parental consent was rendered by the trial court.

The default judgment was entered on September 27, 1957.

[96]

The uncontradicted affidavit of Darrell B. Edwards, one of plaintiff’s attorneys, avers that on or about October 15, 1957, he notified Philip L. Evans, one of defendant’s attorneys, that plaintiff had obtained a default decree of annulment. It was not until March 4, 1958, that defendant filed a notice of motion to set aside the default.

Defendant contends that having filed an answer to the first amended complaint the denials of which were such that they were also responsive to the allegations of the second amended complaint, the ease was thus at issue and that the default judgment was therefore void. (Defendant did not advance this contention at the hearing of her motion below. She there asserted that there had been no service of the second amended complaint—an assertion which was countered by plaintiff with substantial evidence to the contrary and which was impliedly found by the lower court to be untrue.)

Defendant is correct in her contention that her answer to the first amended complaint was sufficient to put in issue the allegations of the second amended complaint.