Moran v. Superior Court

TUTTLE, J. —

Petition for writ of

certiorari

to annul an order setting aside and vacating an order vacating and setting aside an interlocutory decree of divorce.

A rehearing was granted herein for the purpose of examining numerous authorities which the parties did not present originally.

As alleged in the petition, the action in which the order here assailed was entered is one for divorce, commenced against petitioner by his alleged wife, upon the grounds of extreme cruelty. The issues upon the divorce complaint having been settled, the respondent court proceeded to a trial of the action, as a result of which an interlocutory decree of divorce was given, made, and caused to be entered on March 3, 1939. Petitioner thereafter, and on July 6, 1939, caused to be served and filed a notice of motion to vacate the interlocutory decree, to reopen the cause, for leave to file an amendment to this petitioner’s answer in the form of a cross-complaint for an annulment of marriage, and for leave to offer evidence in support of said cross-complaint. The cross-complaint alleged, as a ground for annulment of the marriage between the parties, that at the time of said marriage plaintiff was the wife of one Paul R. Henricks (then living). This motion came on regularly for hearing, which plaintiff in the divorce case, and her counsel, and petitioner and his counsel all attended. The motion to vacate the interlocutory decree was thereupon made, and witnesses were sworn and examined, and two depositions were read in support of the motion. The matter was then argued to the court, the authorities then quoted and cited, and the motion was submitted for consideration and decision. The respondent court, upon such submission, then granted the motion, vacated the judgment, and granted leave to petitioner to file the proposed cross-complaint. Thereafter, pursuant to the leave granted, petitioner served and filed his cross-complaint, to which plaintiff answered, and upon memorandum and motion for the purpose, the cause was regularly set down for trial on the cross-complaint and answer thereto.

[631]

The cause came on regularly for trial, on the issues as thus fixed, on August 30, 1939, and the cause was tried on the issue of the validity of the marriage, and was submitted to the court on that sole issue. This trial took place without any objection whatever being made to the regularity thereof, nor to the validity of the order vacating the interlocutory decree. At no stage of the second hearing, nor at any time, was any motion or application of any kind made to vacate the order vacating said interlocutory decree, nor was any notice of any kind given to, or by either of the parties, or by the respondent court, or to anyone, that the vacation and setting aside of the order vacating said interlocutory decree was contemplated, considered, or intended. Neither was any hearing of any kind ever had at which was presented or considered the proposition of the vacation of such order.