Prewett v. Dyer
Before: Henshaw
Synopsis
Divorce—Action to Set Aside Fraudulent Decree—Statute of Limitation—Discovert of Alleged Fraud—Findings.—In an action by a divorced wife commenced against the personal representative of the husband, after bis death, to set aside a judgment and decree of divorce obtained by the husband, upon the ground that it was procured by fraud, where the court finds against the plaintiff upon the question of fraud, and for the defendant upon the plea that the action was barred by subdivision 4 of section 338 of the Code of Civil Procedure, by reason of the plaintiff’s discovery of the facts constituting the alleged fraud more than three years before the commencement of the action, the finding upon the statute of limitations, if justified by the evidence, is determinative of plaintiff’s right to maintain the action, regardless of whether the finding upon the question of fraud is or is not justified by the evidence.
Id —Burden of Proof—Conflicting Evidence as to Discovert—Support of Finding.—The burden of proof to support the averment of the discovery of the alleged fraud within three years from the time of the commencement of the action is upon the plaintiff; and where her evidence upon this point was merely an assertion of her ignorance, and the defendant proved facts and circumstances tending to discredit this assertion by showing its unlikelihood or improbability, and showing that plaintiff was in a position to know or discover the facts in the case, and where a presumption was raised by the facts and circumstances proved that the conduct of the plaintiff was prompted by knowledge of the divorce more than three years prior to the commencement of the action, which presumption, to the mind of the trial judge, before whom the witnesses appeared, was more satisfactory than the declaration of the plaintiff as to her ignorance, a finding in favor of the defendant upon the statute of limitations is justified by the evidence, and is conclusive upon appeal.
Id.—Right to Reject Evidence.—A judge, no more than a jury, has the right arbitrarily to reject evidence; but, as a jury may be instructed that it is not bound to decide in conformity with the declarations of any number of witnesses which do not produce conviction, against a presumption or other evidence satisfying the mind, so should a judge be governed in his determinations by the same rule.
Henshaw, J. Appeals from the judgment and from ' the order denying plaintiff a new trial.
Plaintiff, the divorced wife of James L. Prewett, commenced this action against his personal representative after his death, asking the court to set aside the judgment and decree of divorce obtained by Prewett, upon the ground that the same were procured by fraud. Judgment in that case was rendered upon July 10, 1882. Plaintiff’s action was commenced upon April 8, 1893, but she pleads that she was in ignorance of the divorce proceedings until December, 1892.
Defendant, besides denying the material allegations of the complaint, pleads the statute of limitations. The court finds against plaintiff upon the issues of fraud, and for defendant upon her plea that plaintiff’s cause [157]of action is barred by the provisions of subdivision 4 of section 338 of the Code of Civil Procedure. If this finding is justified it is determinative of plaintiff’s right to maintain this action, and renders superfluous any examination and discussion of the evidence upon the charges of fraud.
The finding of the bar of the statute is, therefore, first to be considered, and herein as to the facts: James L. Prewett and plaintiff intermarried in January, 1877, and thereafter lived at the Wilkins House in Santa Cruz, though the husband’s ranch and home were in Monterey county. The wife separated from her husband in December, 1878. This separation she testifies was by mutual agreement, reduced to writing. She was to return to her former home in Philadelphia, which she did after the lapse of a year, most of which she spent in Santa Cruz, the rest being passed in Sacramento. She remained in Philadelphia until 1886. While there she wrote some letters to her husband with her address upon the envelopes. She never heard from her husband, but none of the letters were ever returned to her.
Prewett’s action was to obtain a divorce from his wife upon the ground of her desertion. It was verified and averred that the last known place of residence of his wife was the city of Philadelphia. In due course service of summons was had by publication, and in the affidavit for such publication, made by Prewett three months after filing the complaint, he swears that, according to his best information, “ defendant resides in the Fifth Avenue Hotel in the city of Hew York.” At that time plaintiff had never been to that hotel, nor in Hew York. Upon June 26, 1882, Prewett, testifying in the matter of his divorce, swore that he did not know where his wife resided; that the last he heard of her she was living in Philadelphia.
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