Smith v. Smith

WOOD (W. J.), J.

Plaintiff has appealed from an order of the superior court granting defendant’s motion to set aside a default judgment by which she was given an interlocutory decree of divorce. It is claimed that the showing made by defendant was insufficient to justify the granting of the order.

Plaintiff filed an action in Los Angeles County on February 20, 1943, seeking a divorce, alimony and the appointment of a receiver for certain real property of the parties. An affidavit for publication of summons was filed on May 24, 1943, an order for the publication of summons was obtained and the summons was served on defendant at Las Vegas, Nevada, on June 4, 1943. A default was entered on September 7, 1943, and a second default was entered on September 15, 1943. An interlocutory decree was signed and filed by the court on September 20, 1943, granting plaintiff a divorce and an undivided one-half interest in the realty.

Defendant filed his notice of motion to set aside the defaults and the default judgment on October 15, 1943, and presented his proposed answer and cross-complaint. He also filed affidavits by himself and by Vern E. Garten, his former attorney. From these papers it appears that defendant became a resident of the State of Nevada on January 27, 1943, with the intention of residing permanently in that state; that on March 10, 1943, he instituted an action for divorce in the State of Nevada against the plaintiff herein; that summons and complaint in the Nevada action were personally served upon plaintiff herein on March 12, 1943; that she did not appear in the Nevada action, her default was entered therein, and a decree was rendered by the Nevada court on April 13, 1943, granting a divorce to the defendant herein; that the

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parties had agreed upon a property settlement which had been consummated by the execution of the proper conveyances.

In the affidavit of defendant it is stated that upon the receipt on June 4, 1943, of the copies of the summons and complaint in the present action defendant mailed these papers to Vern Garten, an attorney practicing in Long Beach, and employed him to defend the action; that defendant was advised by Mr. Garten that he would take care of the matter and would appear and present a defense in the action; that defendant believed that the attorney thus employed had taken proper steps to defend his interests in the action until October 1, 1943, when he learned for the first time that a default had been entered against him; that he thereupon employed Bussell H. Pray as his attorney to take steps to set aside the default judgment.