Robinson v. Robinson

BALTHIS, J.

Plaintiff’s complaint is quite lengthy and recites in great detail evidentiary matter dealing with the unhappy domestic relations history between plaintiff and defendant. The essence of the complaint is that in a previous action between the parties in which defendant (as plaintiff therein) obtained a judgment of divorce against plaintiff (as defendant therein), the court was misled by false evidence given by defendant. The complaint alleges that in the trial

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of the previous action “the defendant testified falsely under oath,” “the defendant and his attorney had falsely misled the court” and that the court was deceived by the objections of defendant’s attorney to certain evidence.

The default of defendant in this action was taken by plaintiff but thereafter, upon motion made, the default was set aside and defendant was permitted to file a demurrer to the complaint. At the hearing on the demurrer the court made inquiry of the plaintiff (appearing in propria persona) as to the judgment rendered in the prior action. The minute order sustained the demurrer without leave to amend and reads in part: “Plaintiff conceded at the hearing that the prior divorce action between the parties had resulted in a judgment against her after a trial at which she was represented by counsel. . . . Plaintiff’s claim here is that the trial judge in the divorce ease rejected her evidence and received evidence which she contends was false. No facts to support plaintiff’s theory of extrinsic fraud have been alleged in the complaint and none suggested in response to the Court’s inquiry in open court. ’ ’

Three questions are presented: (1) Was the trial court’s order granting the motion to set aside the default proper? (2) Does plaintiff’s complaint state facts sufficient to constitute a cause of action ? (3) Was it an abuse of discretion for the trial court to sustain defendant’s demurrer to the complaint without leave to amend ?

As to the first point, it appears defendant’s default in the instant action was entered and later, upon motion made by defendant, such default was vacated and set aside. The clerk’s transcript on appeal does not include the notice of motion made by defendant or the affidavits in support thereof, although such papers were referred to in the clerk’s transcript. There also appears from the record that the default of defendant was entered February 11, 1960, that the motion to set aside the default was filed March 4, 1960, and that the minute order granting the motion to set aside the default was made March 15, 1960. Thus, it does appear from the record that the motion was timely made. The trial court has broad discretion in the setting aside of a default and granting of motions under section 473 of the Code of Civil Procedure and the burden of showing there was a manifest abuse of discretion of the trial court is upon the appellant (see