Spitzer v. Superior Court

CASHIN, J.

An original application for a writ of prohibition to prevent the entry by the Superior Court in and for the County of Alameda of a final decree of divorce in an action pending therein entitled

“Hazel M. Spitzer, Plaintiff,

v.

Sidney Spitzer, Defendant

The defendant, who is the petitioner herein, and plaintiff intermarried in the territory of Hawaii during the year 1917 and lived together therein until the month of June, 1920, when a separation occurred, petitioner remaining in that territory, while his wife with the minor child of the marriage came to California and has since resided in the county of Alameda. It is alleged in the petition—and there have been filed herein exemplified copies of the proceedings —that petitioner on March 2, 1922, commenced in the circuit court of that territory an action for divorce, alleging desertion by his wife, who appeared therein and contested the action; that on December 5, 1923, judgment was therein entered granting a divorce to petitioner, awarding the custody of the child to its mother, and providing for the payment by petitioner of certain sums for the support of the child, and which judgment—an appeal (which was thereafter dismissed) having been taken therefrom by petitioner—became final on July 29, 1924.

In the meantime, on September 6, 1923, Hazel M. Spitzer filed in respondent Superior Court an action for divorce against petitioner on the ground of cruelty, wherein service of summons was had pursuant to sections 412 and 413 of the Code of Civil Procedure. Petitioner—who at all times mentioned herein has been a resident of Hawaii, failed to appear therein except in the manner hereinafter stated, or to answer the complaint, whereupon his default was entered and an interlocutory decree of divorce granted to plaintiff

[497]

therein on March 11, 1924, from which decree no appeal was taken.

On December 11, 1923, petitioner, assuming that respondent Court was without jurisdiction, appeared therein for the special purpose of moving a dismissal of the action on that ground, in that there was then pending the action mentioned in the Hawaiian court. The moving papers having been stricken out on motion by plaintiff, petitioner moved no further therein until after the entry of the interlocutory decree mentioned, when, on October 14, 1924, he filed therein his motion for relief under the provisions of section 473 of the Code of Civil Procedure, and for an order of respondent Court vacating the interlocutory decree and permitting petitioner to answer the complaint, filing therewith his verified answer thereto, wherein was pleaded the decree of the circuit court mentioned as a bar to the action. This motion was by respondent Court denied, and from the order an appeal, which is now pending and undetermined, was taken by petitioner to the supreme court of the state of California.