Yarbrough v. Yarbrough

PETERS, P. J. In this action for separate maintenance the default of the defendant was duly taken, and a default judgment and decree entered. Thereafter, defendant moved to set aside his default. The motion was granted. The wife appeals.

The appeal is presented on appellant’s brief alone, respondent having failed to file a brief in support of the order. This failure imposes an unnecessary burden on this court, and at least raises the inference that respondent concedes that the appeal is meritorious. (Bendlage v. Kohlsaat, 54 Cal.App.2d 136 [128 P.2d 691]; Postin v. Griggs, 66 Cal.App.2d 147 [151 P.2d 887]; see discussion, 4 Cal.Jur.2d p. 334, § 496.)

On December 6, 1954, the wife, appellant herein, in San Francisco, brought an action against her husband, respondent, a San Francisco resident, for separate maintenance, on the grounds of cruelty and wilful neglect, praying for $150 per month for support, plus certain other sums for hospital and medical care. Summons and complaint were served on respondent on December 30, 1954, in San Francisco. The summons bore on its face the standard provision that if served within San Francisco “You are hereby directed to appear and answer the complaint . . . within ten days after the service on you of this summons . . .

“. . . that unless you appear . . . the said Plaintiff will . . . apply to the Court for any other relief demanded in the complaint.”

On January 11, 1955, the respondent having failed to appear, appellant secured the entry of respondent’s default. On January 18, 1955, respondent moved to set the default aside, the supporting affidavit merely averring in general terms that the default “was taken against defendant by reason of his surprise, inadvertence and excusable neglect” [613]without alleging any supporting facts. An affidavit of merits and a verified answer denying the major allegations of the complaint were also filed, as was also a cross-complaint for a divorce. On January 28, 1955, this motion to set aside the default was denied, without prejudice.

On February 1, 1955, a default decree of separate maintenance was entered, ordering respondent to pay appellant $130 per month, to pay community debts up to $590, and to pay appellant’s attorney’s fees of $200 and $25 in court costs. On this same day respondent again filed a notice of motion for an order to set aside the default. Respondent’s supporting affidavit avers that the 1 ‘ default therein was taken against defendant by reason of his surprise, inadvertence and excusable neglect in that when affiant was served with a copy of the summons and complaint on or about December 30, 1954, he mislaid the same and did not find them again until he was in default, at which time affiant immediately took the said copy of complaint and summons to Joseph E. Isaacs, Esq., his attorney, who advised affiant of his said default and further advised affiant he would try and negotiate with the attorney for the plaintiff to give affiant the opportunity to file his answer and cross-complaint.”