Ross v. Ross

BARNARD, P. J.

This is an appeal from an order setting aside an interlocutory decree of divorce, and from an order substituting an attorney for the plaintiff.

The complaint, filed on May 23, 1952, alleged cruelty as the ground for a divorce. On June 4th, the defendant filed an answer and a cross-complaint seeking a divorce on the same ground. On June 26th, the court entered an order requiring the defendant to pay the plaintiff $20 per week for her maintenance. On June 30th, notice that trial of the cause was set for July 30th was served on plaintiff’s attorney.

The cause was called on July 30th, the plaintiff not being present in court. Her attorney and the attorney for the defendant then stipulated that the case might be heard the next day as a default matter; that the defendant might then proceed on his cross-complaint; and that the decree should contain no provision for support for the plaintiff but should provide for her right to seek such support within a period of six months. An interlocutory decree was entered on July 31, 1952, in which the court, after referring to this stipulation, found the allegations of the cross-complaint to be true and that a divorce should be granted to the defendant. It was further decreed that the plaintiff was entitled to no support or maintenance, with the proviso that she should have the right to petition the court for such an allowance at any time within six months of the date of the decree.

On September 10th, plaintiff’s attorney secured an order to show cause why the interlocutory decree should not be modified, some of the grounds being that the plaintiff was ill and staying with relatives in the interior of Mexico at the time the decree was entered, and that at all times since she has been in ill health and unable to support herself. This

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application for modification of the decree was denied on October 3d.

On October 14th, a different attorney, appearing specially for that purpose, filed on behalf of the plaintiff a notice of motion to vacate the interlocutory judgment, with the affidavits of the plaintiff and of the attorney who represented her on the previous proceedings. On the same day an order to show cause was issued, and copies of the notice of motion, the order, and the affidavits were served on defendant’s attorney. The grounds stated in the notice of motion were: that at the time the decree was entered the plaintiff was ill in Mexico; that she did not know that the cause had been set for trial; that her attorney entered into this stipulation without her knowledge or approval; that she had a valid cause of action for divorce and a valid defense to the cross-complaint; and that the default judgment was taken against her through the mistake, inadvertence, surprise or excusable neglect of herself and her attorney.