Bancroft v. Bancroft , 178 Cal. 359 ( 1918 )

I concur in the judgment, on the ground that, while it is to the interest of the state that divorces shall not be obtained by collusion between the parties, that interest does not extend so far as to prevent the operation of the doctrine that equity will not relieve a party front an improper judgment rendered upon his own invitation, upon full knowledge of the facts and without coercion, imposition, or fraud upon him. I am not ready to approve the opinions in Mulkey v. Mulkey, 100 Cal. 91, [34 P. 621], and Rehfuss v. Rehfuss, 169 Cal. 86, [145 P. 1020], in so far as they appear to intimate that the superior court, in a proceeding ostensibly under section 473 of the Code of Civil Procedure, may set aside a judgment of divorce, in the absence of any showing of mistake, inadvertence, surprise, or excusable neglect on the part of the party applying for relief. The intimations to that effect were not necessary to the decision of either case. Section 473 does not give such power. I see no sound reasons for holding that the court has any greater power to set aside a judgment for fraud or mistake within the period of six months after it is rendered than it would have at any time within the statutory period of limitation for such actions.

In view of the concurring opinion of Justice Melvin, I wish to add that I do not understand that this court, either inDeyoe v. Superior Court, 140 Cal. 476, [98 Am. St. Rep. 73,74 P. 28], or Grannis v. Superior Court, 146 Cal. 245, [106 Am. St. Rep. 23, 79 P. 891], has announced the doctrine that the state is a party interested in every divorce case. The cases, as I understand them, merely say that the state is interested in the matter of granting of divorces, not that it is a party to the action in any ordinary sense of the word.