Drizhal v. Drizhal

FOURT, J. This is an appeal from an order denying a motion to vacate and set aside a default judgment.

The plaintiff, sometimes hereinafter referred to as the husband, brought an action in divorce in Los Angeles County. He had consulted his attorney about bringing an action in divorce in February, 1957, under the name of Harold B. Hall, a name he had gone under or' used for over 20 years. His wife has used the name Mildred Dolores Hall, and the four children of the marriage “were known under and used the name Hall.” He did not tell his attorney at that time that his true name was Harold J. Drizhal, and that he and his wife had been married under the name of Drizhal. He further stated that he had become “so accustomed to the name of Hall that he forgot his true name.” The action was filed under the name of Hall. In the complaint it was charged that the wife had been guilty of extreme cruelty, that there was certain community property and that there were four children of the marriage. The husband sought the property, a divorce and the custody of the children. Service was by publication of the summons.

The mother of the wife petitioned for an order for the appointment of a guardian ad litem. A commissioner made an order wherein the mother was appointed the guardian ad litem on April 5, 1957, and such order with the petition was filed on April 9, 1957. On April 24, 1957, the guardian filed an answer and cross-complaint. Thereafter, the husband demurred to the answer and the cross-complaint and made a motion to strike the answer and cross-complaint. The husband set forth in an affidavit that after the motion to strike and the demurrer were filed, but before the matters were heard in court, as he was taking some clothing out of a chest for one of the children he had come across the marriage license; that he then read the license and recalled that he was married under the name of Drizhal, whereupon he advised his attorney of his true name. His attorney had then advised him that in all probability the action filed under the name of Hall and the publication of summons and service thereunder were defective and that a new action would have to be filed.

The demurrer to the cross-complaint was sustained and [28010] days were given within which to amend. The demurrer to the answer was overruled. The motion to strike the answer was denied.

Upon leaving the courtroom after the hearing of the order to show cause, the attorneys for the respective parties discussed the matter, and apparently the attorney for the husband told the attorney for the guardian of the wife that the true name of the parties was Drizhal and not Hall; further that the parties had resided in the Santa Monica district, and that another action would be filed under the proper name in the Santa Monica branch of the superior court. Counsel for the guardian of the wife stated that he knew of the correct name and he attempted to dissuade the attorney for the husband from proceeding as indicated. Further, the attorney for the husband, on December 9, 1957, told the attorney for the guardian of the wife of the proceedings which were had in the ease in Santa Monica, and that there had been no effort to mislead him or anyone else.