Peters

Alma C. Peters sued her husband, Clarence, for divorce upon the ground of cruelty. She also sought custody of their 4-year-old son, and an order requiring defendant to make reasonable payments for his support. The complaint alleged that the parties had divided their community property and that the agreement therefor was fully executed; it also alleged that $80 a month was a reasonable amount for the support of the child and within the ability of defendant to pay. Defendant was served with summons and complaint and upon his failure to appear in the action his default was duly entered. On June 19, 1957, the matter was heard as a default and the court granted plaintiff an interlocutory decree, awarding her custody of Danny and ordering defendant to pay $115 a month for child support. July 13, 1957, defendant noticed a motion under section 473 of the Code of Civil Procedure to vacate the default and the default judgment upon the grounds that they had been taken against him through mistake, inadvertence and surprise. The motion was granted and the default and the interlocutory decree were set aside. Plaintiff appeals.

The motion was heard on affidavits of Mr. and Mrs. Peters. The…