Bonfield v. Bonfield

This is an appeal by the defendant from an order of the superior court in and for the city and county of San Francisco setting aside a final decree of divorce in favor of plaintiff.

The action was commenced on April 28, 1921, by the filing of a complaint charging extreme cruelty. After trial plaintiff secured an interlocutory decree of divorce on May 3, 1921. On February 23, 1923, defendant made a motion for the entry of the final decree. Plaintiff appeared and objected to the granting of the motion upon the ground that since the entry of the interlocutory decree the parties had lived together as husband and wife. As a result, the motion for a final decree of divorce was denied. Later, the parties entered into a stipulation, waiving all legal objections to the entry of the final decree and requesting the court to enter the same, and the defendant agreed to pay to plaintiff the sum of six hundred dollars, in monthly installments

Appellant contends (1) that the trial court was without jurisdiction to revoke the final decree; (2) that the control and management of the action was in plaintiff’s attorney, and plaintiff is bound by his stipulations and actions taken

[2] As to the jurisdiction of the court to make the order appealed from, it appears that the order and judgment for the final decree was regular upon its face, and that the proper method of attack was by appeal or by an action in equity to set the same aside for fraud or other sufficient reason. It was said in United Railroads v. Superior Court, 170 Cal. 755 [Ann. Cas. 1916E, 199, 151 Pac. 129 ] : “Nothing is more firmly settled in this state than the doctrine that the superior court may not revoke, modify or otherwise disturb its judgments and orders regularly made in pursuance of plain statutory provision where the statute prescribes the method by which such judgments and orders may be reviewed except as authorized by statute.”

In Holtum v. Greif, 144 Cal. 521 [ 78 Pac. 11 ], it was said: “The decisions of this court are numerous and uniform to the effect that a judgment or order once regularly entered can be reviewed and set aside only in the modes prescribed by statute. If they have been entered prematurely, or by inadvertence, they may be set aside on a proper showing (citing eases) and if the order as entered is not the order as made, the minutes may be corrected so as to make them speak the truth (citing cases), but subject to these exceptions the order is reviewable only on appeal, and the decision of the trial court having been once made after regular submission of the motion its power is exhausted—■ it is functus officio (citing cases).”

“It cannot be doubted that a judgment can be nullified by the court which rendered it only, first, on motion for a new trial; second, by a motion under the provisions of section 473 of the Code of Civil Procedure, where the judgment is inadvertently made and where application is made

The present appeal presents a case where a judgment is regular upon its face and plaintiff is claiming extrinsic fraud on the part of her attorney as a reason for setting it aside. She does not set up facts entitling her to relief under the provisions of section 473 of the Code of Civil Procedure. If she is not bound by the action of her attorney under the cases of Holmes v. Rodgers, 13 Cal. 191 , Clemens v. Gregg, 34 Cal. App. 245 [ 167 Pac. 294 ], Crescent Canal Co. v. Montgomery, 124 Cal. 134 [ 56 Pac. 797 ], then, in any ev.ent, the judgment is binding upon her until set aside in a proper proceeding, and it appears that the one adopted in this case was not the proper proceeding.

The order appealed from is reversed.

Sturtevant, J., and Nourse, J, concurred.