Block v. Block

WHITE, P. J. Defendant appeals from an order of the Superior Court of Los Angeles County, denying a motion to set aside a default judgment of divorce under provisions of section 473, Code of Civil Procedure, made upon the ground that the said default judgment was taken against the defendant through his mistake, inadvertence, surprise or excusable neglect. When denying the motion, the trial court stated: “Prom the affidavits on both sides in this ease, it seems to me that it is inescapable that the defendant had notice of this action and did not appear within the time.”

The record includes the affidavit of Carl Neighbors that he personally served the summons and complaint upon the de[329]fendant, Harold L. Block, at Paramount, California, on March 30, 1955.

The affidavits in support of defendant’s motion to set aside the default are to the effect that “shortly after May 5, 1955, the defendant was informed by the plaintiff that she had obtained a divorce against the defendant. . . . Defendant was taken completely unawares by said information inasmuch as at no time had he been informed that his wife had filed papers for divorce although defendant admits that he knew she was contemplating divorce and that they in fact had both discussed the matter with an attorney. Defendant states that it was made known to him that he was supposed to have been served by one Carl Neighbors ...” Defendant’s “first knowledge of said divorce action taking place was after the interlocutory judgment had already been obtained by the plaintiff.”

The supporting affidavit of Carl Neighbors is that plaintiff gave him papers to be handed by him to defendant; that he did hand those papers to defendant; that he was later told that the papers so handed to defendant included divorce papers; that he signed the affidavit of service; “and that if I knew any divorce papers were contained in said mail, I would not have delivered them to her husband.”

In opposition to said motion to set aside the default judgment, the record includes the affidavit of plaintiff that she personally asked Carl Neighbors if he would serve the papers upon the defendant; that he stated that he would; that she handed them to him; that the papers were discussed by them; and together they placed them in an envelope.

Edna Flood, an employee of plaintiff, averred that on or about March 30,1955, plaintiff asked her to serve the summons and complaint upon defendant; that she was leaving early that afternoon and could not do so; that she discussed the service with Carl Neighbors and he said he was working that evening and would be glad to serve the papers upon defendant; that later that afternoon Mr. Neighbors told her Mrs. Block had offered him $10 to serve the papers and that he had refused the money because he would be working there anyway.