Landon v. Landon

McCOMB, J.

From a judgment in favor of plaintiff after trial before the court without a jury in an action to set aside, on the ground of extrinsic fraud, (1) a default, (2) interlocutory decree, and (3) final decree of divorce, defendant appeals.

The evidence being viewed in the light most favorable to plaintiff (respondent), the essential facts are:

Defendant and plaintiff were married in 1926. In 1939, plaintiff and defendant, with their two children, went to Japan where plaintiff engaged in a business venture. In October, 1940, defendant and the children of the parties returned to the United States. At the time defendant left Japan, she had $548. Thereafter defendant received no further financial aid from plaintiff. She maintained herself and supported her two children, aided by some assistance from Mrs. Case, an aunt of plaintiff. Plaintiff remained in Japan to complete his business enterprise. On September 12, 1941, defendant filed a complaint for divorce and obtained an order for publication of summons. On or about October 18, 1941, plaintiff was served with a copy of the summons and complaint in Tokyo, Japan. He immediately cabled his attorney in California requesting that he file a demurrer to the complaint and obtain a continuance of the action pending plaintiff’s return to the United States. Plaintiff’s attorney did not follow the instructions he had received and failed to appear in the action because he believed that by so doing he would prevent a personal judgment being entered against plaintiff herein.

On November 25, 1941, plaintiff left Japan for the United States via Shanghai, China. He was in Shanghai on December 7, 1941 (the official date of the commencement of the war be

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tween the United States of America and Japan). On December 8, 1941, plaintiff was arrested by the Japanese in Shanghai, interned, and held in restraint by the enemy until November, 1943, when he was released, arriving in the United States in December, 1943.

On January 12, 1942, Mrs. Bouton, mother of plaintiff, presented to the superior court an affidavit that plaintiff was unable to appear in the divorce action because of the outbreak of the war and requested a stay of proceedings pending his return to the United States. Such an order was issued. Shortly thereafter, defendant communicated with Mrs. Bouton’s attorney stating in substance that if Mrs. Bouton continued to interfere with the divorce proceedings she would obtain a statement from the State Department of the United States that plaintiff was working in the interests of the Japanese Government, and that the probable consequence would be trouble for plaintiff. Mrs. Bouton, fearing the consequences of the action threatened by defendant, refrained from further participation in the divorce proceedings.