Richmond v. Denny

WASTE, P. J.

This is an appeal from a judgment, or order, of the trial court refusing to restore a lost or destroyed record, in conformity with appellant’s application for restoration of the records in the case of

Eva F. Denny

v.

Orion O. Denny,

a divorce action instituted by the appellant against her husband, since deceased,, in 1884, the record of which was destroyed in the conflagration of April 18, 1906. The court found, in substance, and restored the complaint, the summons, service of which was made and default entered, the findings, and the decree of divorce. It refused to incorporate in the decree an alleged provision granting the plaintiff the sum of $250 per month as and for permanent alimony, for the maintenance and support of plaintiff alone, commencing September 1, 1884. The restoration of the decree of divorce as presented would have laid the foundation for a judgment in favor of the petitioner, which could have been made the basis of a claim against the estate of the deceased.

The lower court found that “in view of the impecunious condition of the defendant [the deceased husband] in said action at the time of said trial, as disclosed by the evidence herein, that no such amount as the sum of $250 per month was awarded to plaintiff for the support of herself alone; . . . That, at the time of the destruction of said records by fire, the said Eva F. Richmond (formerly Eva F. Denny) was a resident of the city and county of San Fran

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cisco; that, in failing to apply for the restoration of said record for more than thirty-two years since the date of said decree of divorce, and more than ten years after the destruction of the records herein, and more than six months after the date of the death of said Orion 0. Denny, the said Eva P. Richmond, formerly Eva P. Denny, was guilty of laches, in allowing an unreasonable length of time to elapse before the filing of said petition herein, thus rendering uncertain and unsatisfactory to the court the testimony offered as to the contents of the proposed record.”

The act providing for the restoration of lost or destroyed records provides, in part: “ ... If, upon such hearing the court shall be satisfied that the statements contained in such written application are true, the court shall make an order reciting what was the substance and effect of such lost, injured or destroyed judgment. ...” (Stats. 1906 (Ex. Sess.), p. 73, see. 2.)