Karlein v. Karlein

California Court of Appeal Apr 17, 1951 No. Civ. 17909Published

Before: Drapeau

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Holding. The court held that the defendant demonstrated excusable neglect regarding his default and was entitled to relief under section 473 of the Code of Civil Procedure, as the law favors trials on the merits.

Issues

Whether the trial court abused its discretion in denying the defendant's motion to set aside a default and interlocutory judgment of divorce.

Disposition. reversed

Quotations verified verbatim against the opinion

“In the circumstances here appearing a showing of excusable neglect was made, and defendant was entitled to relief from the default taken against him and from the interlocutory judgment which followed.”

“Neither party should be deprived of a hearing except when guilty of inexcusable neglect, and doubts should be resolved in favor of an application to set aside a default judgment.”

DRAPEAU, J.

Plaintiff and defendant married in Las Vegas in 1941. They have two children, one adopted.

November 10, 1949, the wife filed complaint for divorce.

November 18, 1949, defendant appeared, without counsel, on an order to show cause, and was ordered to make payments for the support of his children.

January 6,1950, defendant again appeared, without counsel, on a contempt proceeding, which was dismissed.

[497]

On both of these occasions defendant attempted to reconcile with plaintiff, but she “refused to talk to” him.

November 14, 1949, copy of the complaint and summons was served personally upon defendant.

December 22, 1949, his default ivas entered, no appearance having been made for him.

January 12, 1950, interlocutory judgment of divorce ivas made, and entered on the following day.

February 3, 1950, defendant appeared by counsel and moved to set aside the default and the default judgment. The motion was submitted upon affidaAdts of defendant, his Avife, and others, and by the court denied. From this order defendant appeals.

Defendant’s affidavit alleges that he was not familiar Avith legal procedure, and had some difficulty with the English language; that plaintiff in 1947, and again in 1948, instituted divorce proceedings against him Avhich terminated by reconciliation; that Avhen he was served with summons and complaint he did not realize that the complaint had to be answered within 10 days; that up until January 11, 1950, defendant made several attempts to get in touch with counsel Avho represented him in the previous divorce proceedings, but was unable to contact him.

Defendant’s affidavit further alleges that on January 11, 1950, he was taken into custody on a psychopathic warrant issued upon an affidavit sworn to by his wife; that he was held in Los Angeles County Hospital and in Patton State Hospital until January 27, 1950, when he was found sane by a jury and released; that at the time of the default hearing resulting in the interlocutory decree he was actually confined in the psychopathic ward of Los Angeles County Hospital, and that plaintiff well knew of his incarceration.

Karlein v. Karlein

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DRAPEAU, J.

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