Hambrick v. Hambrick

GOODELL, J.

This is an appeal from an order vacating an interlocutory judgment of divorce on motion of the defendant made under section 473, Code of Civil Procedure.

On August 6,1945, appellant sued respondent on the ground of extreme cruelty and on the same day respondent was served with summons and complaint. He failed to appear; his default was entered on August 30, and on that day the case was tried and an interlocutory judgment in appellant’s favor was filed.

On October 17, a notice was served on appellant stating that on October 25, respondent would move for an order setting aside the default judgment on the ground that it had been obtained through respondent’s “mistake, inadvertence, surprise, excusable neglect, lack of benefit of legal counsel” and inexperience in legal matters.

Respondent’s supporting affidavit shows that the summons had been served in the office of appellant’s counsel and that a property settlement agreement had been signed in the same office. It shows that respondent had thought he would be entitled to notice of the time and-place of trial, and “to be heard by the Court in his own defense”; that although he had been told that if he did not answer “the case would ‘go by default,’ due to his lack of benefit of legal counsel and to his own inexperience in legal matters, [he] did not understand what was meant by the terms ‘answer’ and ‘default’; that he did not understand that a default judgment would be entered

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against him without further notice to him.” A showing of merits is contained in the same affidavit.

Appellant's counteraffidavit shows that she was without funds to pay counsel; that the motion was not made in good faith or founded on fact; that the respondent has no grounds for divorce against appellant; that respondent was then $175 in arrears, and therefore in no position to ask for relief. Another counter affidavit, made by appellant’s counsel, shows that there were several conferences between the spouses in his law office, culminating in the contract, during which period respondent stated that he would probably consult his attorney, but that no attorney ever communicated with appellant’s counsel. It states that the respondent is an educated man and the publisher of a newspaper; that appellant’s counsel explained the entire contents of the agreement-to respondent, who thoroughly understood the effect of what he was doing, and who expressed his satisfaction with the agreement. It states that on respondent’s inquiry whether he would have to go to court, appellant’s counsel advised him that he would not unless he wished to; that respondent informed appellant’s counsel that he did not wish to contest the action and that he knew he and his wife could not live together in peace and harmony; that respondent knew, and was also advised by appellant’s counsel, that in addition to the charge of extreme cruelty there was another charge which could have been alleged, and that respondent tacitly admitted there would be no defense thereto if made. It states further that after the entry of the interlocutory judgment appellant’s counsel immediately informed respondent of that fact, and that about the middle of August, and before the entry of judgment, respondent called at the office of appellant’s counsel and signed a deed conveying certain property to appellant pursuant to the contract. It concludes with the statement that respondent had been fully advised of his rights and understood everything that occurred.