Hubert v. Hubert

DORAN, J. This is an appeal from an order vacating and setting aside the service of summons and complaint, and interlocutory and final judgments of divorce based thereon. The husband, appellant herein, filed a complaint for divorce on November 16, 1942, alleging cruelty and desertion by the respondent wife. According to the appellant’s brief, ‘ ‘ Appellant is of the Caucasian race, and while serving in the United States Navy in the orient met respondent and married her. Respondent is a Chinese woman, and according to her affidavit appearing in the record, was a resident of Shanghai, China, and had been from 1937 until a few weeks prior to the filing of her motion herein involved.” On November 17,1942, the appellant husband filed the conventional affidavits for publication of summons, affirming that the wife’s residence was outside the State of California, the address being given as #49 Fook Tien Terrace, Lane 362, Medhurst Road, International Settlement, Shanghai, China.” The affidavit further stated that affiant “received a letter from defendant in November of 1941, and she was at that time still living at the above address. The said letter was lost on the U. S. Aircraft Carrier ‘WASP’ which sank in the Pacific Ocean several months ago, and on which ship affiant was stationed.” Thereafter, an order was duly entered directing that service of summons to be made “upon the defendant Pang Pao Chi Hubert by publication in the Los Angeles Daily Journal” at least once a week for two months. The court further ordered that “a copy of the summons and complaint in this suit be forthwith deposited in the United States Post Office, postpaid, directed to said defendant at said place of residence,” plaintiff’s then attorney being appointed to perform that duty; the order specifying that “He shall send said envelope with its contents enclosed as registered matter.” (Appellant’s italics.) On November 25, Attorney George H. Pratt, representing the plaintiff, presented a further affidavit reciting that “on November 24, 1942, he presented for registration ... a letter containing said Summons and Complaint addressed to the de[500]fendant at #49 Fook Terrace, Lane 362, Medhurst Road, International Settlement, Shanghai, China; that he was at that time and place informed by the clerk that no registered mail was being accepted for delivery in Shanghai, China, and the clerk of said Post Office refused to accept the letter offered by affiant,” for which reason affiant asked permission to “mail said letter to said defendant by ordinary mail.” An order was thereupon entered permitting the summons and complaint to be sent by ordinary mail, which order was duly complied with. The record further discloses an affidavit of publication in compliance with the original order. Thereafter, on May 7, 1943, a default interlocutory judgment of divorce was awarded the appellant, and on June 13, 1944, a final divorce judgment was entered at the request of plaintiff’s attorney.