Treat

This is an application by the petitioner, Evelyn Mariquita Treat, for a writ of certiorari seeking to annul, vacate and set aside an order made and entered in the Superior Court of the City and County of San Francisco, granting a motion to vacate the findings and judgment in two separate actions which had been consolidated and tried by said court. These actions had been instituted by Valentine Treat, as plaintiff, against his wife, petitioner herein, *638 one for divorce, and the other to establish a trust upon certain real and personal property held by her. On May 21, 1935, so the petitioner sets forth, the judge who heard the case, Honorable Thomas F. Graham, now deceased, made and entered his decision in favor of the defendant, upon her cross-complaint, and an order to that effect was entered in the official records of the court. Thereafter on June 25, 1935, said judge signed the findings of fact and conclusions of law and judgment in the consolidated cases in favor of petitioner, granting to her an interlocutory decree of divorce, custody of the minor child of the parties, a certain amount for the minor’s support to be paid monthly by the plaintiff, and quieting title to the…

I dissent. The majority opinion concedes that, independently of the provisions of section 662 of the Code of Civil Procedure, the trial court possesses the inherent power to set aside its findings, conclusions and judgment in a ease where it is shown that they were signed under the mistaken belief that they had been served on the opposite party. The motion in the present case was based on the sole ground that a copy of the findings, conclusions and judgment had not been served. The motion having been granted, that must have been the reason for its granting. It is the only reasonable and logical conclusion that can be reached. That conclusion is directly responsive to the grounds of the motion. It plainly indicates that the signing by the judge was obtained under a mistake of fact. The only element lacking is that the trial judge did not expressly find that he had signed the findings and conclusions and judgment in the mistaken belief that they had been served on the opposite party. The statute requires that they be so served. It is true that the statute is directory only, but that does not mean that in signing the findings the trial judge cannot assume that the provisions of the…

This is an application by the petitioner, Evelyn Mariquita Treat, for a writ of certiorari seeking to annul, vacate and set aside an order made and entered in the Superior Court of the City and County of San Francisco, granting a motion to vacate the findings and judgment in two separate actions which had been consolidated and tried by said court. These actions had been instituted by Valentine Treat, as plaintiff, against his wife, petitioner herein, one for divorce, and the other to establish a trust upon certain real and personal property held by her. On May 21, 1935, so the petitioner sets forth, the judge who heard the case, Honorable Thomas F. Graham, now deceased, made and entered his decision in favor of the defendant upon her cross-complaint, and an order to that effect was entered in the official records of the court. Thereafter on June 25, 1935, said judge signed the findings of fact and conclusions of law and judgment in the consolidated cases in favor of petitioner, granting to her an interlocutory decree of divorce, custody of the minor child of the parties, a certain amount for the minor's support to be paid monthly by the plaintiff, and quieting title to…