Morton v. Morton

Belcher, C. The plaintiff instituted this action in the superior court of Napa county to obtain a divorce from the defendant upon the ground of extreme cruelty. [444]The complaint was filed September 25, 1895, and the summons was duly served on defendant October 14th thereafter. He failed to appear, and on November 11th judgment was entered dissolving the bonds of matrimony between the parties, and awarding the plaintiff permanent alimony in the sum of twenty dollars per month, and thirty-five dollars costs of suit. Defendant received at San Francisco, on November 20th, notice of the entry of the judgment, and on December 7th he served and filed notice that he would move the court to vacate and set aside the judgment upon the ground that it was taken against him through his mistake, inadvariance, surprise, and excusable neglect. The motion was heard by the court in January, 1896, and thereafter denied; and from that order this appeal is prosecuted.

The motion was submitted upon the affidavit of defendant, and oral testimony given by Edward A. Bell, and by the plaintiff and the defendant.

The substance of defendant’s affidavit was that, after the commencement of this action, he and the plaintiff lived and cohabited together as husband and wife, at their home near Calistoga, in Napa county, until about the middle of October, 1895, when he left and went to San Francisco; that prior to the commencement of this action plaintiff had commenced another action for divorce against him, and thereafter they had become reconciled and lived together, and both had been advised by their respective attorneys that by reason of such reconciliation the action could not be further prosecuted; that plaintiff had told defendant that he must leave, as she would no longer live with him, and he had told her that she could obtain a divorce if she so desired, but that he would not permit a divorce upon the grounds set out in the complaint, as the charges of cruelty therein made were not true; that he would leave Napa forever, provided she would not ask a decree awarding to her any alimony or other sums of money; that plaintiff promised defendant that she would not take any judgment in this case, but would wait a year and then have [445]her attorney file a new complaint asking for a divorce upon the ground of desertion, but not asking either alimony, counsel fees, or costs; that defendant transferred all his real and personal property to plaintiff, and, relying upon the promises made by her to him, left the county of Napa without filing any answer in this case; and that after his departure, and without notice to him, plaintiff caused judgment by default to be entered against him.