Edison v. Edison

DRAPER, J.

Pour years after entry of interlocutory decree in this divorce action, defendant wife moved to vacate and set aside her default, and the interlocutory and final decrees, upon the ground of plaintiff husband’s extrinsic fraud. The motion was granted, and plaintiff appeals.

The basis of the wife’s motion was that she was mentally incompetent at the time of the entry of her default and that the husband’s extrinsic fraud consisted in his concealment of this fact from the trial court, thus depriving her of the right to be heard, and preventing a fair adversary proceeding. The trial court accepted this view.

Of course, this motion is not one under Code of Civil Procedure, section 473. The rule is clear, however, that a judgment procured by extrinsic fraud may be vacated on motion, as well as by an action in equity.

(Olivera

v.

Grace,

19 Cal.2d 570 [122 P.2d 564, 140 A.L.R. 1328]; 29 Cal.Jur.2d, Judgments, §§ 125, 174.)

[634]

Plaintiff-appellant asserts that the evidence, which consisted wholly of affidavits plus certified copy of an Illinois decree, is insufficient to support the order.

The defendant, to sustain her motion, was required to establish (1) that she was mentally incompetent at the determinative time involved, (2) that plaintiff either knew this or knew facts concerning it which, if revealed to the court, would have resulted in a continuance until she could be heard in person or by guardian, and (3) that plaintiff concealed such information from the court.

(Olivera

v.

Grace, supra,

19 Cal.2d 570;

Landon

v.

Landon,

74 Cal.App.2d 954 [169 P.2d 980].)