Skouland v. Skouland

FILES, J.

This is an appeal from an order denying a motion to set aside a final judgment of divorce. The motion was made by plaintiff upon the ground that the defendant had obtained the judgment through extrinsic fraud after the parties had reconciled.

The record shows that after the final judgment was entered defendant married Elizabeth Buekendorff, and within four months thereafter he died. Elizabeth was appointed as administratrix, and appears in that capacity as respondent on this appeal. When plaintiff’s motion to set aside the judgment came on for hearing Elizabeth’s attorney appeared in opposition. The record does not show that she was ever substituted as a party defendant or that she made any other formal appearance in the action in the superior court. No point has been made of this by either party and this court will therefore assume, for the purpose of this appeal, that the administratrix was duly substituted for the decedent and is properly appearing here as respondent on this appeal.

Elizabeth submitted affidavits which conflicted with the affidavit of the moving party. When the motion came on for hearing plaintiff asked leave to put on oral testimony, but the court declined to hear witnesses. Plaintiff contends that she was denied a fair hearing.

Motions are normally heard on affidavits alone.

(Beckett

v.

Kaynar Mfg. Co.,

49 Cal.2d 695, 698 [321 P.2d 749].) While oral testimony may be received in the discretion of the court, it is ordinarily proper to decide on the affidavits alone.

(Muller

v.

Muller,

141 Cal.App.2d 722, 731 [297 P.2d 789].)

A judgment procured by extrinsic fraud may be attacked either by a motion in the same action or by an independent action in a court having equity jurisdiction. Having in mind the availability of the alternate remedy, courts have commented upon the impracticability of trying the issue of fraud upon affidavits. (See

Estudillo

v.

Security Loan etc. Co.,

149 Cal. 556, 564 [87 P. 19];