Hoeft v. Hotchkiss

FINCH, P. J. This is an appeal from the order of the .trial court herein “denying plaintiff’s motion to set aside the judgment and decree and the referee’s report.” The record consists of the final decree in the action and the motion to vacate, together with affidavits introduced at the hearing of the motion and the order denying the same. It appears that an “interlocutory judgment and decree” was *671 entered and F. R. Hull appointed to take an account; that he took such account and reported his findings to the court; and that thereafter the court “recast and restated” the account in many particulars and entered judgment upon the findings as so corrected. Appellant contends that the motion should have been granted on the ground that she had no notice of the hearing before the referee. She introduced affidavits stating that neither she nor her attorney were notified of such hearing. She resided in Nevada City at the time of the hearing and her attorney had his office in San Francisco. The referee made affidavit that he duly mailed notices of the hearing to the plaintiff and to her attorney six days before the time set for such hearing. Regardless of other questions, the motion was properly denied on two grounds. First, it is not stated in plaintiff’s affidavits that she could have produced any evidence which was not introduced at the hearing before the referee and considered by him or that any finding made by the referee or by the court is erroneous. Second, it does not appear but that plaintiff and her attorney were fully informed of the filing of the referee’s report and of its contents in ample time to have raised the objections which are now made prior to the entry of judgment. She should have made objection at that time to the adoption by the court of the referee’s report. (Doudell v. Shoo, 20 Cal. App. 424 [129 Pac. 478] The order is affirmed. Pullen, J., pro tem., and Plummer, J., concurred.