Hamilton v. Hamilton

CHIPMAN, P. J.

This is an appeal from an order made in the minutes of the court of March 10, 1911, “denying defendant’s motion to set aside and vacate the default judgment made and entered against defendant herein on the 13th day of September, 1910, and permitting defendant to appear and answer, and from the whole thereof.” The only judgment found in the transcript appears to have been entered and filed on September 8, 1910.

It appears that plaintiff brought her action against defendant for divorce on the ground of extreme cruelty. The complaint was filed August 27, 1910, and duly served on the same day, and, on September 8, 1910, the interlocutory decree of divorce was duly made and entered, reciting, among other things, that on said last mentioned day the cause came on regularly for trial, “upon plaintiff’s complaint herein taken as confessed by the defendant, whose default for not answering had been duly entered, and upon proof taken herein from which it appears that all the allegations of. the complaint are true . . . and that said defendant was duly and regularly served, at San Francisco, California, with the summons issued in the action, ’ ’ etc.

The grounds of the motion as therein stated were—“that said default and said judgment were entered herein against defendant by mistake, inadvertence, surprise and excusable neglect of defendant.” The points urged are: 1. That the court erred, under the showing made, in not making an order •vacating the default judgment. 2. That the court had no jurisdiction to enter default and judgment. Upon the first point appellant relies on the facts alleged in his affidavit,

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used in support of the motion, to the effect that at the time he was served with summons he was led to believe, from what was then told him by the persons present, including his wife and her attorney,, that he had thirty days in which to answer or appear; that he was called away to a neighboring state and returned on September 10th, within the thirty days, and then for the first time learned that the case had been tried and an interlocutory decree entered against him; that he was unable to communicate with the attorney he had intended employing until October 4, and when he met him the advice given by his attorney was “not satisfactory,” and later he employed his present attorney who, on December 16, 1910, made the motion. Suffice it to say that counter affidavits of the persons said to have been present when the summons was served, contradicted defendant in the material statements made by him.