Cowan v. Cowan

DORAN, J. This is an appeal from an order granting defendant’s motion, in a divorce action, to set aside the interlocutory judgment.

Briefly the record reveals the following: The action for divorce was filed by the husband on. December 14, 1943; summons served December 21, 1943; default entered January 4, 1944; interlocutory decree entered January 24, 1944.

On January 10, 1945, one year, less two weeks, after the interlocutory judgment was entered, defendant made the motion referred to herein. Affidavits setting forth what was declared to be extrinsic fraud were the basis for the motion. In support thereof, two affidavits of merit were offered, one by defendant’s physician and one by defendant, The physician’s affidavit is as follows:

“Vernon Van Zandt, H. D., being first duly sworn, deposes and says that:

“He has been treating Theda Agnes Cowan for approximately three (3) years. That she was under my personal care and supervision from the period of December, 1943 to date. That it is my personal opinion and observation that Theda Agnes Cowan was in no condition mentally to discuss any personal problems or to consult an attorney from December 1943 until approximately three or four weeks ago.

Vernon Van Zandt, M. D.”

So far as the doctor’s affidavit is concerned, it is of little, if any, value in support of the motion; it is scarcely more than a naked opinion. The expressions “treating Theda Agnes Cowan for approximately three years” and “under my personal care and supervision,” reveal nothing in the nature of [870]reasons for the opinion. Section 1872 of the Code of Civil Procedure provides:

“Whenever an expert witness gives his opinion, he may, upon direct examination, be asked to state the reasons for such opinion, and he may be fully cross-examined thereon by opposing counsel.” And section 1870, paragraph 10, provides that evidence may be given upon a trial of “the opinion of an intimate acquaintance respecting the mental sanity of a person, the reason for the opinion being given.” (Italics added.) Although not a trial, the court was charged with the responsibility of determining an important fact, by means of evidence presented in the form of affidavits. Such procedure does not dispense with the necessity of proof; and substantial evidence is required to produce such proof. There is nothing substantial about that which is merely perfunctory.