Boris v. Boris

FOURT, J. This is an appeal from an order denying a motion to vacate a default interlocutory judgment of divorce. A complaint in divorce was filed by the plaintiff on April 8, [723195]7, wherein she charged the defendant with extreme cruelty, and also alleged the usual statutory requirements, and further set forth that there was certain described community property of the parties. She requested: a divorce; that the property be distributed pursuant to law; support and maintenance for herself; a reasonable attorney’s fee; restoration of her former name and other customary demands.

The defendant engaged an attorney who represented him until after the interlocutory decree of divorce was granted. The attorney so engaged consulted with the defendant, prepared an answer wherein the defendant, among other things, set forth that the community property consisted solely of a trailer court business (which trailer court business was not mentioned in the plaintiff’s complaint). The answer was filed on April 26,1957.

On July 12, 1957, the attorney for the wife filed a “Memorandum for Setting Contested Action.” On October 17, 1957, the cause was set for trial on February 14,1958. A “Notice of Trial” dated October 24,1957, was served upon the defendant and his attorney, and filed in the court on October 25, 1957.

On December 13, 1957, the parties and their attorneys each signed a “Stipulation for Default” in which it was set forth that the answer to the complaint theretofore filed be withdrawn and that the matter be heard as a default, and that each waived notice of all further proceedings. The stipulation was filed February 14,1958.

On December 13, 1957, after negotiations between the parties and the attorneys, a property settlement agreement, which was prepared by the attorney for the defendant, was signed in his office by the parties, both attorneys being present.

On February 18, 1958, the defendant signed a substitution of attorneys, whereby he substituted his present attorney of record, in the place and stead of the attorney who had represented him up to that time. The consent to the substitution was signed by the former attorney on February 20, 1958, and the substitution was accepted by present counsel on February 21, 1958. The “Substitution of Attorneys” document was filed February 24,1958.

The defendant’s present counsel then filed, on March 7, 1958, what is denominated a “Notice of Motion to Vacate and Open Default and Default Judgment under section 473 C.C.P. because of surprise, inadvertence and excusable neglect.” The motion was noticed for hearing on March 26, 1958. Various