Mills v. Mills

MARKS, J.

This action was brought by plaintiff against defendant for divorce and to secure the custody of and support for Marcelle Mills, the daughter of the parties, of the age of three years. The plaintiff was given an interlocutory decree of divorce, with the custody of the child and twenty dollars ($20) a month for the support of the minor.

The complaint was filed by plaintiff in the Superior Court of San Bernardino County on or about April 1, 1926, and the summons served on defendant personally in the county of Imperial, on or about April 19, 1926. An amended complaint was filed June 16, 1926, and personal service of the summons was had on the same day in the county of San Bernardino. The default of the defendant was entered on July 1, 1926. The trial was had on August 5, 1926, and the interlocutory decree of divorce signed on that day.

On October 30, 1926, the defendant appeared and filed a notice of motion to set aside ■ and vacate the interlocutory decree of divorce. An answer and cross-complaint and a motion in the form of an affidavit by defendant was filed at the same time. "This motion was heard and denied on November 22, 1926.

Defendant’s motion was made under the provisions of section 473 of the Code of Civil Procedure, on the grounds of inadvertence, mistake and excusable neglect on his part and also upon the grounds of fraud and subterfuge on the part of the plaintiff.

The inadvertence, mistake and excusable neglect on the part of defendant is set forth in his affidavit substantially

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as follows: That upon learning of the divorce proceedings he became ill, worried and grief-stricken to such "an extent that he became temporarily mentally incapacitated and incapable of properly protecting his interests in the divorce action.

The fraud and subterfuge on the part of plaintiff, as alleged by defendant, grew out of purported statements made by plaintiff to defendant at various times, after the filing of both the original and amended complaints, to the effect that she would dismiss her complaint or that they would live together again and that “if things went to suit plaintiff she would not procure the permanent decree.”