Fisher v. Superior Court

THOMPSON (IRA F.), J.

On July 5, 1929, the petitioner here commenced an action in the respondent court against his wife for divorce. After default of the defendant and trial, and on August 1, 1929, an interlocutory decree was made and rendered. On August 2, 1930, the defendant in the divorce action filed a complaint for separate maintenance on the ground of desertion, wilful neglect and extreme cruelty, and also set up a cause of action to set aside and vacate the interlocutory decree for the reason that it was obtained by the plaintiff there through extrinsic fraud practiced upon the court and the defendant. On August 22, 1930, the respondent court made an order requiring the petitioner here to pay to the plaintiff in the second action during the pendency of the action, certain sums of money for the support of herself and their minor children and also the sum of $75 as attorneys’ fees therein. Later an order was made requiring the petitioner to appear and show cause why he should not be punished for contempt for refusal to comply with this order. It is for the purpose of preventing the respondent court from proceeding to punish the petitioner and to prevent it from hearing the order to show cause that the writ of prohibition is sought in the matter now before us.

In

Parsons

v.

Weis,

144 Cal. 410 [77 Pac. 1007, 1010], which was an action to set aside a judgment quieting title on the ground that it was fraudulently obtained and to have it declared that plaintiff was in fact the owner of the property, it is said: “An attack upon a judgment on the ground that it was procured by fraud is a direct attack,

since the establishment of the fraud shows that no judgment has been rendered.

The fraud, however, from which

[567]

said relief may be given does not include a judgment regularly obtained upon a fraudulent claim or by false testimony, but it is limited to a fraud in procuring the judgment.

(Pico

v.