Prewett v. Dyer

Citations

• 107 Cal. 154
• 40 P. 105
• 1895 Cal. LEXIS 726

Syllabus

<p>Divorce—Action to Set Aside Fraudulent Decree—Statute of Limitation—Discovert of Alleged Fraud—Findings.—In an action by a divorced wife commenced against the personal representative of the husband, after bis death, to set aside a judgment and decree of divorce obtained by the husband, upon the ground that it was procured by fraud, where the court finds against the plaintiff upon the question of fraud, and for the defendant upon the plea that the action was barred by subdivision 4 of section 338 of the Code of Civil Procedure, by reason of the plaintiff’s discovery of the facts constituting the alleged fraud more than three years before the commencement of the action, the finding upon the statute of limitations, if justified by the evidence, is determinative of plaintiff’s right to maintain the action, regardless of whether the finding upon the question of fraud is or is not justified by the evidence.</p> <p>Id —Burden of Proof—Conflicting Evidence as to Discovert—Support of Finding.—The burden of proof to support the averment of the discovery of the alleged fraud within three years from the time of the commencement of the action is upon the plaintiff; and where her evidence upon this point was merely an assertion of her ignorance, and the defendant proved facts and circumstances tending to discredit this assertion by showing its unlikelihood or improbability, and showing that plaintiff was in a position to know or discover the facts in the case, and where a presumption was raised by the facts and circumstances proved that the conduct of the plaintiff was prompted by knowledge of the divorce more than three years prior to the commencement of the action, which presumption, to the mind of the trial judge, before whom the witnesses appeared, was more satisfactory than the declaration of the plaintiff as to her ignorance, a finding in favor of the defendant upon the statute of limitations is justified by the evidence, and is conclusive upon appeal.</p> <p>Id.—Right t