Cottrell v. Cottrell

McFarland, J. — This is an appeal by plaintiff from an order setting aside a judgment in her favor.

The action was for divorce, and the defendant had filed a verified answer denying all the averments 'of the complaint. On May 24, 1887, the presiding judge of the superior court of San Francisco made an order transferring the case from department No. 1 of said court, in which it was pending, to department No. 8 of said court. On the same day the case was taken up for trial in department No. 8, in the absence of defendant or his counsel, and judgment was on said day entered [459]for plaintiff. Notice of the judgment was immediately served on defendant’s counsel, who, on the same day, May Ü4, 1887, gave notice to plaintiff’s counsel of a motion for an order to set aside the proceedings, “on the ground that the transfer of said cause from department No. 1 to department No. 8 was made without notice to or the consent of said defendant, and all proceedings had in said department No. 8 were without notice or knowledge of defendant or his counsel.” On the day set for the hearing, the order was granted, and from this order plaintiff appeals.

Matters such as that involved here are largely in the discretion of the trial court, and we see in this case no abuse of discretion. While the various departments of the superior court of San Francisco constitute, theoretically, one court, still, practically, for the purpose of trial of causes, they are distinct, as are other superior courts; and to transfer a case from one department to another, and try it on the same day, without any notice whatever to the opposite party, is a very abrupt proceeding, from which, in a divorce case, at least, it is not improper to relieve the absent party.

The order was not erroneous because no costs were imposed on the moving party. The cases cited by appellant on that point were made when section 473 of the Code of Civil Procedure and section 687 of the former Practice Act expressly required the payment of costs as a condition of the relief. There is no such requirement now.

No affidavit of merits is required on a motion of this character in a divorce suit. (McBlain v. McBlain, 77 Cal. 607.)

The order was not erroneous because “no affidavits were made or used.” As above stated, no affidavit of merits was necessary; and there is no statutory provision requiring that proof of any other fact shall be made by affidavit, nor is there any decision of this