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District Court of Appeal, Second District, Division 1, California.


Civ. 13740.

Decided: September 03, 1942

Harold B. Pool and Robert G. Johnson, both of Los Angeles, for appellant. Sylvester Isonberg, of Los Angeles, for respondent.

In the petition for rehearing herein respondent contends that the decision is not based upon the portion of the complaint charging constructive fraud or mistake as admitted by appellant's answer. However, it does not appear that appellant has admitted the existence of any fraud, constructive or otherwise. It should also be pointed out that the trial court's finding of constructive fraud is not sustained by the evidence. Neither the relationship, if any, of appellant and respondent nor the circumstances under which appellant petitioned the probate court to have the deceased's estate set aside to her as his wife furnished the basis for such a finding, regardless of the legal effect of the entry nunc pro tunc of appellant's final decree of divorce or of the like effect of the failure to enter the decree earlier. No authority has been offered which would justify a ruling that appellant was guilty of constructive fraud under the circumstances here presented.

As already pointed out in the opinion filed herein, the only proper conclusion to be drawn from the evidence is that both parties were laboring under a misapprehension as to the entry of the final decree of divorce. The rule for setting aside judgments because of mistake is well expressed in Bacon v. Bacon, 150 Cal. 477, 89 P. 317, which case comes closer to being analogous to the present one than any other cited by respondent. In the Bacon case, at the hearing of the petition for distribution of an estate the original will in the handwriting of the testator was on file, but it was not produced and examined, or read by or to the court. The petition was prepared from one of the typewritten copies of the will, which copy stated the plaintiff's legacy as two thousand instead of ten thousand dollars. The attorney for the executor read this statement to the court and also stated that it was a correct statement of the contents of the will. The mistake in question appeared to have been common to all parties, as well as to the court. The Supreme Court there stated in its opinion (150 Cal. at page 490, 89 P. at page 322): “If the plaintiff had been present at the hearing, contending that the will gave her $10,000, had presented the point to the court, and the court had thereupon read the word ‘ten’ as ‘two,’ and had made the distribution as it was made by the judgment appealed from, no doubt she would be precluded from any relief by way of equitable review, no matter how plain the mistake of the court would appear.” The court there stated: “The gravamen of the rule * * * lies in the fact that ‘the unsuccessful party has been prevented from exhibiting fully his case,’ and, consequently, that there has been ‘no adversary trial or decision of the issue,’ no ‘real contest at the trial,’ or, as stated in Pico v. Cohn [91 Cal. 129, 25 P. 970, 27 P. 537, 25 Am.St.Rep. 159], no ‘fair submission of the controversy.’ Where the unsuccessful party has been thus hindered, he is not to be refused relief on the ground that the fact on which his defense or claim in the original action depended, and by which he expects to bring about a different result in the new suit for equitable relief, was technically in issue in the original action or proceeding, or was necessarily decided by the court in that action and concluded by the original judgment beyond reach on collateral inquiry.” The court also stated that the mistake was not caused by the culpable negligence of the plaintiff.

The situation presented by the case at bar, however, is distinct from that in the Bacon case. Unlike the plaintiff in the Bacon case, the respondent here was not misled by any mistake or act of another party. Upon the record, nothing appears to have hindered respondent from ascertaining the facts concerning the decree of divorce in question other than respondent's own failure to exercise diligence in discovering the same. It might also be pointed out that the circumstances here presented would have afforded respondent no grounds to move for a new trial because of newly discovered evidence, since it is plain that with the exercise of reasonable diligence the facts could have been discovered prior to the hearing in probate upon appellant's petition to have the estate set aside to her. Respondent does not complain of any lack of notice of appellant's petition to the probate court. A cursory examination of the records in the divorce action would have revealed the true facts. If the circumstances here presented would not have afforded respondent relief by way of a new trial or hearing, how can they be said to afford respondent grounds for having the decree set aside? From all that appears in the record the equities are in favor of appellant.

It should be emphasized that the opinion of this court is based solely upon the conclusion that the findings of the trial court are not sustained by the evidence and that the evidence presents no justification for setting aside the decree in probate here in question. The legal effect of the entry nunc pro tunc of appellant's decree of divorce has no bearing upon the question here decided.

The petition for rehearing is denied.