Wheelock v. Superior Court

WORKS, J.

Petitioner was defendant in a divorce action pending before respondent court, in which an interlocutory decree of divorce was entered in favor of the plaintiff, Mary Katherine Wheelock, on April 8, 1922, and in which, on Mrs. Wheelock’s motion a final 'decree was entered on

[602]

June 14, 1923. On December 14, 1923, which it will be observed, was exactly six months after the date of entry of the final decree, Mrs. Wheelock filed in the office of the clerk of respondent court, under the title of the divorce action, a certain paper which was headed “Motion.” This paper began thus: “Comes now the plaintiff . . . and moves the above entitled Court for an Order setting aside and vacating the Final Decree of Divorce heretofore entered in the above entitled cause on the 14th day of June, 1923, separating the parties hereto, on the following grounds and for the following reasons and particulars, to wit”: the grounds of the motion then being set forth. In brief, they were that the parties to the action had resumed their marital relations on or about June 9, 1922, and had continued those relations up to the date of entry of the final decree of divorce; that on June 9, 1922, they entered into an agreement to remarry after the granting of a final decree in the action; that they both believed that the entry of a final decree was a necessary prerequisite to a valid remarriage; that Mrs. Wheelock made her application for a final decree solely because of that belief, and that .on the entry of the final decree Wheelock abandoned her and refused to comply with his agreement to remarry her. The motion was neither called to the attention of respondent court, nor was petitioner in this proceeding ever given notice of it, nor did he have notice of it, except at the time and in the manner below to be stated. The motion was accompanied by no affidavits, and referred to none, but on December 19, 1923, an affidavit of Mrs. Wheelock in apparent support of it was filed in the office of the clerk of respondent court, and on January 10, 1924, several affidavits of other persons were also filed by her. None of these affidavits was ever served on petitioner, except that the affidavit of Mrs. Wheelock was served as hereinafter stated. On January 23, 1924, a notice of motion, dated January 14, 1924, was served on petitioner, notifying him that on January 28, 1924, Mrs. Wheelock would call up for hearing the motion theretofore filed by her and stating the purport of the motion. It was also said in the notice that the motion would be made upon the affidavit of Mrs. Wheelock and that a copy of the motion and a copy of that affidavit were attached to the notice. On January 28, 1924, in open court, Mrs. Wheelock made a motion to vacate and set aside