Hammond v. Hammond

STEPHENS, J.,

pro

tem.

This is an action for divorce on the grounds of wilful neglect and extreme cruelty. No evidence was introduced upon the latter cause of action. An order to show cause was issued against the defendant, but thereafter a stipulation was entered into by and between the parties, through their attorneys, that such order might be set aside, which was done. The defendant did not plead to the complaint, and after expiration of the legal time counsel for plaintiff requested the clerk to enter his default. The record before us does not disclose whether or not the clerk ever entered the default, but we take it that he did, inasmuch as the case was set down for hearing as a default case and counsel in their briefs treat the case as though the default had been regularly entered. After plaintiff had put on her case the trial judge, noticing the defendant in court, called him to the witness-stand. To this plaintiff’s counsel entered an objection upon the ground that such proceeding was incompetent, irrelevant, and immaterial. The objection was overruled and the court proceeded to examine defendant. The examination elicited testimony tending to prove the support of plaintiff by defendant, and revealed a number of canceled checks which defendant testified were given for the support of plaintiff. Counsel for plaintiff asserted in open court that the checks were spurious, that the plaintiff had been surprised with their production, and asked time in which to respond to this evidence. This proceeding was had on Thursday, December 6, 1923, and the court remarked: “We will take a recess now till .next Friday.” The reporter’s transcript shows the next hearing to have been on January 23, 1924.

[214]

Meantime we learn from the clerk’s transcript that an answer and cross-complaint was filed, but there is no record of any proceeding relieving defendant from his default. However, both sides to this appeal refer to the taking of the default and the relief therefrom as facts in the proceeding, and the court in the course of the proceedings does likewise. We shall therefore assume the default to have been entered and set aside. Much discussion was had as to whether the trial on January 23d should proceed without regard to the testimony taken before the relief from default, but it appears to have proceeded as an adjourned hearing and not