Daily Alta California, Volume 42, Number 13868, 20 August 1887 — VACATING JUDGMENTS. [ARTICLE]

VACATING JUDGMENTS.

-*»« All«r«fj'i laexrutable JLacb«« bo

tironnd Therefor.

Tbe following important decision by Judge William T. Wallace lias been filed iv tbe Su)>erior Court:

In tfce Superior Court, in and for the city and most; «f .San Ki~aix.-i.sco, State of California, Dej:;ul)i.i nl Kol <!. Hon. William T. Wallace. Judge. Trautuer vs. Ti-autner.

In this cause a decree of divorce was denied to the jilajntitl'lx'caiH-e of the insatlicieury of the proofs as loher rewdenc*? in this State for" the period of six UHintlis next preceding the couiinencement of the a« turn. An opinion was tiled at the time, poiutin"■at the nepeadty. iv <ases of this character, of niak™ iug plenary pi-oof ofttbe i-equired period of residence antecedent to the lninging of the suit. It was ac«*!itHngiy then held that tlie testimony of a iiarty to the action, iiusnpporh-d and uucojToborated brother. • \ ideijce, is iv jmjim of law iu«uflicient to es"tablish lh«fact«r residence. Xo doubt is suggested that Mich is the law. An application is, however now luade. iijion tlie part of tlie plaintiff, that the judgment then given be vacated and the case returned to the Commissioner to take and report further testimony upon the fact of residence. Affidavits have iMt-n tiled . in nupiioit of tbe application: one of these is that of Isabella Raymond, who was a witness sworn and examined before tbe Commissioner and who now swears that she underKtixid hem-ll to liave testified liefore him to a residence by the plainUtt in this State of some two years l*efor» this suit was brought. If she did in point of fact so testify, her testimony in that reflect must be admitted to have been incorrectly rejtortwl by the Commissioner, which is not to be lt^dily assumed. Another affidavit in support of the application is that of the attorney for the plaintifl. wlio conducted the examination before tbe «>miiu«.s:ojier. I 'art of this affidavit is as follows • "That aftiaiit believed at the time that the Coin! mixMoiiei- s j^jKiit in this matter was submitted that tlie Vttaeta lUiymoud had testified before said ComwiisbiouM- that plaintifl in this action, Jessie Trautner. had irsided in this State continuously for a jM-nod l of more than six months, to-wit. two yearn immediately next preceding the commencement of this actitm. and that *he was now a resident of this fctate. IJiat arhant supj-wed and verily believcl ai.d i*li«l ujM.li jt. that said testimony had been so jnvMi aiid ha-1 lie.ii rec.,rded by said Commissioner. J hat through said mistake, inadvertence and exdisable neglect, ihe 1-ejMJrt of said Commissioner vr» submitted wjjhout having been carefully exaniitietl by me, and I believed it contained said l*'St,.l3l!<lll\ a 1. TJw ne»Jo«-t which may be availed of for the viir)>oM>ot vacating a judgment must be "excusnl.le Ji'Tl.ct." 1« it "excusable Siu the attorney to liave delilHi-ately tailed to examine the report of the C<iuiiin>Moi:er befoi-e it was submitted ? Is it "ex «-*isable" in him because he "supposed " "believed" —tltta veidly— and "relied npon it" that the e\i-«k-m« necessaiy lor the success of his cb'ent's case bad lMfii put before, the Court ! Ko extraoi-dinan-«r unusual circumstance is shown to have occurred. wliuJi might be supposed to hare prevents the ready examination of the report by the attorney • no Hicknt>«, unexpected attention elsewhere— not e'veu the proverbial jiivjis of pixifessional engagements— is suggested. It is settled tliat such neglect as this will not snpport a claim for i-elief. (Smith vs Tunstead. 50 Cal. X.. 177.) '1 But. were this otherwise, no affidavit of n»rits — required by the seventeenth printed Rule of I'ractice is presented. An affidavit of merits is indispensable as the basis of a motion to vacate a judgment pronounced. (The Xevada Bank vs l>re sbach, 03 Cal.. 325.) lam therefore constrained, upon authority to deny tbe motion ; and an order will be entered accordfns'y- WM.T. Wallace, Judge.