Bender v. Hutton

[373]

BEATTY, C. J.

This is a petition for a writ of mandate requiring a judge of the superior court to make an order for the publication of the summons in an action for divorce. The application for the order was based upon the ground that the defendant resided out of the state (Code Civ. Proc., sec. 412) and it was supported by the affidavit of the plaintiff alone, who merely deposed “That the last known address of said defendant was and is Clovis, New Mexico, and this defendant now resides at Clovis, New Mexico.”

The judge refused to make the order, and it is said that his only ground for such refusal was—as stated by him— that the affidavit was insufficient to satisfy him that the residence of defendant was at Clovis, New Mexico, and this because it failed to state the grounds upon which the affiant relied for his belief that her residence was at that place.

The petitioner cites in support of his petition certain cases in which this court has refused to set aside default judgments based upon summons by publication, in which it was contended that the orders for publication were made upon too slight evidence of the essential facts. It is true that this court has been extremely liberal in sustaining such judgments, but the principle of those decisions—as of many others involving similar considerations—is that in matters confided to the discretion of the trial courts or judges—where in other words, they are to act upon evidence satisfactory to them— their orders will not be invalidated when found to be supported by substantial evidence as to the essential facts.' Upon the same principle, and

a

fortiori, we cannot compel those courts or judges to make orders in such matters where the evidence of essential facts—though formally sufficient— is not satisfactory to them, except in cases where there has been a manifest abuse of their discretion. There is a wide distinction between the affirmance of an order based upon slight evidence which has satisfied a judge and a peremptory mandate compelling him to make the same order upon similar evidence which has not satisfied him, and in the latter case especially it cannot be deemed an abuse of discretion to demand other and corroborative evidence which the party claiming relief may easily produce. When the plaintiff in an action pending in Los Angeles makes an affidavit that the defendant is now a resident of Clovis, New Mexico, the judge who