Cameron v. Cameron

SHINN, P. J.

Plaintiff Winifred W. Cameron appeals from an order dismissing the action for failure to diligently prosecute it after remittitur was filed reversing a. former judgment in her favor. In June, 1941, plaintiff filed an action for separate maintenance against defendant. A final decree of divorce was entered February 18, 1943, on an amended complaint. A property settlement agreement had been entered into by the parties February 16, 1942, and the divorce decree made no disposition of community property. On February 27, 1946, plaintiff filed this action to set aside the property settlement agreement on the ground defendant had fraudulently concealed the nature and extent of his property. On appeal, a judgment for plaintiff after trial to the court was reversed for insufficiency of the evidence.

(Cameron

v.

Cameron,

88 Cal.App.2d 585 [199 P.2d 443].) Remittitur was filed in the superior court January 19, 1949. A memorandum for setting for trial was not filed until January 3, 1951, and trial was set for June 11, 1951. The motion to dismiss for failure of diligent prosecution was notice for February 5, 1951, and granted April 18, 1951.

With the motion to dismiss and in opposition thereto affidavits were filed by the parties and their counsel. These related to plaintiff’s claim that her delay was due to negotiations for settlement of the litigation. In February, 1949,

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plaintiff made a motion for leave to file an amended complaint, which motion was denied February 21, 1949. In May, 1949, plaintiff noticed a motion in the divorce action for increase in the allowance for support of the child. The hearing was continued from time to time and the matter was determined September 29, 1949. During June and July there were some discussions betweeen the attorneys relative to settlement of both actions. It was further averred by one of plaintiff’s attorneys, somewhat vaguely, that during the first few months of 1950 the matter of compromise was under consideration, and it was not until December, 1950, that plaintiff finally decided the possibility of compromise was remote. Defendant’s attorneys denied that any compromise discussions took place after September 29, 1949, and denied dismissal of the fraud suit was mentioned except in connection with attempts to agree upon the amount of support money for the child.