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Blundin v. Blundin

April 1915

HARRY BLUNDIN, APPELLANT, V. MARY BLUNDIN, RESPONDENT.


Appeal from Second Judicial District Court, Washoe County; Thomas F. Moran, Judge.

J. M. Frame and J. S. Parker, for Appellant.

Lunsford & Fowler, for Respondent.

By the Court, Norcross, C. J.:

This is an appeal from an order setting aside a judgment and decree of divorce in favor of the above-named appellant. The motion to vacate the judgment was based upon the following grounds:

“That the said decree does not constitute a legal decree; that the said decree was obtained through fraud, and is therefore a fraudulent decree.”

The motion came on for hearing on the 5th day of July, 1913, upon affidavits filed and oral testimony introduced by the respective parties. The transcript on appeal recites that:

“After considering the matter, the court announced from the bench, in substance, that there was no fraud shown in this case, but that he would allow the defendant to make a showing of merit, and, if she could show

[38 Nev. 212, Page 213]

that she had any defense to the plaintiff's complaint, he would give her a chance to be heard, and that he would give the defendant time to file an additional affidavit showing a meritorious defense if she could, and the hearing was continued for that purpose.”

The matter came on for further hearing on the 26th day of September, 1913, at which time a further affidavit of the plaintiff was read and filed. The transcript recites the following account of the proceedings had upon this date:

“After the case had been fully argued and submitted, the court announced that the motion would be granted and the judgment set aside. At this time the court further announced, in substance, that he had a letter in his possession which he then produced and showed to the attorneys, and had the same filed as an exhibit in the case, over the protest and objections of the plaintiff, and at the same time stating, in substance, that it was on this letter that he based his decision.”

Thereupon the court ordered that the judgment be set aside on condition that defendant answer within twenty-five days thereafter. Error is assigned in the granting of the motion; in admitting the second affidavit of the defendant; and in considering and placing in the record the letter written to the judge.

It appears from the motion to set aside the judgment that it was based solely upon the ground that the decree was obtained through fraud. It also appears from the transcript that the court found that there was no fraud in the procuring of the decree. The finding that there was no fraud in the matter of the securing of the judgment finds support in the affidavit and other proof offered on behalf of the plaintiff. As the court specifically found that there was no fraud in the procuring of the decree, the order setting the same aside must be justified, if it can be justified at all, upon some other basis. We are satisfied from a consideration of the ...


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