Swain

This appeal is by the wife from an order by the trial court denying a motion to set aside an order vacating a portion of a divorce decree which declared defendant husband to be the father of a child, Diana. The record discloses he was not the natural father of the child nor had he adopted her. Grounds of the vacating order were that the court in originally making a declaration that Diana was the child of defendant had acted in excess of jurisdiction. Stated broadly, that is the sole question before this reviewing court.

The question, more specifically stated conversely, is an extremely compound one: It is:

The appeal is upon (1) a clerk’s transcript which includes the probation officer’s report, and (2) the testimony taken at the hearing of the divorce. The facts before us on appeal show the following:

On April 16, 1962, Alpha Jo Swain filed a verified complaint alleging inter alia: ‘ ‘ That there are two minor children as the issue of said marriage, Shirley J. Swain and Diana L. Swain. ’ ’ She also alleged that defendant should be ordered to pay to plaintiff for the support of the minor children $156.90 per month until the entry of the final decree, $50 per month for each…

I dissent. The principle of judgment finality stimulates less fervor than the urgings of visceral justice. The extent and limitations of res judicata in divorce cases were summarized by us in Farley v. Farley, 227 Cal. App.2d 1, 8 [ 38 Cal.Rptr. 357 ]. The law is not inflexibly harsh with a divorced spouse who finds himself saddled with an invalid judgment past the point of appeal. He may attack the judgment in a collateral proceeding if it is void on the face of the judgment roll. (3 Witkin, Cal. Procedure (1954) pp. 2047-2048, 2117.) He may also seek equitable relief, by motion or separate action, for extrinsic fraud or mistake which prevented him from presenting his case. (Ibid., pp. 2124-2132.)

Upon collateral attack the judgment roll is the only evidence on the question of jurisdiction. (Johnson v. Hayes Cal. Builders, 60 Cal.2d 572, 576 [ 35 Cal.Rptr. 618 , 387 P.2d 394 ] ; Estate of Wise, 34 Cal.2d 376 , 382 [ 210 P.2d 497 ].) Limited by Code of Civil Procedure section 670, the judgment roll in this case is impeccable. The majority opinion stretches the judgment roll beyond its statutory limits, then finds a flaw in *14 it. Such a procedure was flatly rejected in…

This appeal is by the wife from an order by the trial court denying a motion to set aside an order vacating a portion of a divorce decree which declared defendant husband to be the father of a child, Diana. The record discloses he was not the natural father of the child nor had he adopted her. Grounds of the vacating order were that the court in originally making a declaration that Diana was the child of defendant had acted in excess of jurisdiction. Stated broadly, that is the sole question before this reviewing court.

The question, more specifically stated conversely, is an extremely compound one: It is:

(1) where a plaintiff wife makes a perjurious allegation in a verified complaint for divorce declaring a child not the child of the marriage to be one, and

(2) where the wife obtains a so-called "appearance and waiver" from her husband in which the child is not even mentioned, and

(3) where an officer of the court, appointed for that purpose, investigating, finds out from the parties that the child is not the child of the marriage, and has not been adopted by the husband and so states in a report submitted to the court, and

(4) where said report is read and…