Lima

On the twenty-first day of J une, 1909, Antonio P. Lima instituted this suit for a divorce against his wife, Isabel P. Lima, in the superior court of Alameda County. The complaint, which was not verified, alleged that the defendant had been guilty, on divers occasions, one of which is specifically stated, of acts of adultery with one Manuel Brack, and further alleged that she “is now living and cohabitating with the said Manuel Brack, the place where being unknown to this plaintiff.”

The complaint declared that the plaintiff and the defendant were the owners of certain real estate, which was community property, situate in the county of Alameda, the same consisting of several town lots in Brooklyn township of said county, and being specifically described in the complaint.

The prayer of the complaint was for a decree dissolving the bonds of matrimony existing between the parties and assigning, setting over, and awarding to the plaintiff all the community property described in the complaint.

Service of summons was attempted by publication, and, the defendant having failed to make any appearance within the time prescribed by law in such cases, her default was thereupon entered. On…

I dissent from the refusal to grant a hearing in this court, after decision by the district court of appeal for the third district. If the decree of divorce was void for want of the jurisdictional prerequisites to an order for publication of summons, the defect is one that is apparent on the face of the judgment-roll, and the defendant’s interests can be fully protected without any order setting the judgment aside. In any proceeding involving her status as a wife, or her property rights, she may assail such judgment collaterally, and successfully object to its use against her. Since the plaintiff in the action died before the making of these motions, there was no one upon whom the defendant could serve notice of motion to set aside the judgment. The trial court may no doubt upon its own motion set aside a judgment void on its face. If it had so acted here, and we were satisfied jirom an inspection of the judgment-roll that the judgment was void, the order made would not have been reversed on appeal. But this is a matter within the discretion of the court below. Its refusal to set aside the void judgment should not be reviewed, for the sufficient reason that the defendant is not…