The record-union., 1895-08-13

appearance in the action and waived the issu-
ance OF summons and took five days TO demur
or answer. and on the 27th OF September her
default was entered, having failed to demur
or answer.
On the 29th of December. 1894, the case
was heard, and on the same day decree
granting the divorce was signed Dy the Judge
VINO heard the case. This decree Is found
among the papers in the case OF kamyer VS..
kamyer, but 1t has never been filed nor en-
tered 1t bears a pencil memorandum by the
Clerk mot filed and entered on account OF
fees not being paid" 1t is an admitted 1act
that this decree was never filed nor entered.
The complaint and decree are in the nand-
writing OF Wharton. The appearance OF de-
fendant and waiver of summons Is also IN
| his handwriting and is sworn TO by Mrs.
kamyer before Wharton as Notary Pubic.
In the Hoxie case the default was entered
| August 29th, and the decree granting the dl-
vorce was obtained and entered on the 18TH
| of october. Soon after tnis Kamyer and
| Mrs. HoXle were married. In the complaint
| against Charles Hoxie it was averred that he
| had abandoned his wife on the 2oth Of Octo-
| Der. 1890, and continued such abandon
| ment ever since. At the trial of her suit on
| ] 9th of october Mrs. HOXie testified III open
| court in the presence of w harton, in response
| TO questions by the court, that she had not
| seen or heard of HOXie since october, 1880,
| and had no knowledge or Information as 10
| his whereabouts during that time. AT the
| hearing of this investigation she testfied the
| same, except that she stated that some time
i'll 1894 she had heard u rumor that Hoxie
was in the State Prison at San Quentin.
| 1t appeared there was no foundation Tor
| this ruInor. Among the unquestioned facts
of this case is the one that Hoxie had disap-
peared from Sacramento in October, 1880,
and had not been heard Of by anybody, so far
as is known. since that time. Wharton made
no effort to ascertain his Whereabouts other
| than to make single inquiry at the Pacific
| Hotel, at which place i'll Sacramento Mrs.
Hoxie had informed him her husband was
| last known to have been. Indeed. 1t is not
| claimed by Wharton that the summons was
III fact served IN either of the divorce cases,
| his answer in this regard being denial that
IF StortZ did not serve the summons in
| either case he had any knowledge thereof
and that If the statements Of the affidayitS
| signed by StOrtZ were untrue "he (Wharton)
was imposed on and was innocent OF the
| fact.''
Wharton. upon his own application, dis
| missed his action against his wife the : tn
| of June tor the reason, as he testified, that
| they had settled their difficulties; but, as
| Mrs. Wharton commenced q divorce suit
against him Oh the following day, it is evil
| dent such settlement was not OF a permanent
| character.
The foregoing stated facts are not disputed
| The witness Peter StOrtZ whose testimony
| is disputed, is by occupation q waiter, and
has been employed as such i'll hotels and res
| taurants in Sacramento. SO far as appears lie
| had never been employed in serving legal pa
| pers, and knew little ABOUT any business other
| than his occupation as q waiter. Wharton,
| according to his own statement, had never
| employed him TO serve any papers other than
| in the Two divorce cases. SLOrtZ teStlneS posi-
| lively that he did not serve any papers upon
! either Charles HoXie or upon Hattie W mar
| ton, and that he never heard the affdavits of
| service read ana never swore to either of
them that he did not know Hoxie, and had
| never heard OF him until he saw the name IN
| the neWSp papers after the affair OF the W har-
| ton divorce suit came to be a matter of news
| paper notoriety, and short time before this
| accusation; that he never told Wharton that
| he knew Hoxie or knew where he was, that
| Wharton about in August 1894, handed him
| an envelope, lnclosing papers about which he
| knew nothing, and requested him to deliver
| the same to Mrs. Wharton at their residence,
| and at the same time requesting his signature
| to a receipt for the papers, which he signed
| upon piece OF paper about the size of a
| quarter OF sheet of legal cap, supposing at
| the time that such receipt was usual and
| proper; that he proceeded 10 the residence of
| Mrs. Wharton, and, not tinding her there, re-
| turned TO Wharton's office, and finding no
| one there LETT the envelope on " Wharton S
desk that Wharton made no further inquiry
| of him about the matter.
| StOrtZ Identities his signature upon the
paper which he supposed was / receipt and
| which, with the jurat, seal aud signature OF
| Wharton as Notary Public upon it, is pasted
upon the bottom of full sheet of legal cap
upon which, with the piece so pasted upon it,
the affidavit OF service OF the summons ana
complaint is written IN the handwriting OF
| Wharton and constitutes part OF the judg-
ment roll In the case OF HoXie against HoXie
Kamyer testifies that he paid Wharton
| SlO0 10 lOE HIS ICES III Tue tNO QlNOIC6 SulIS
| of Kamyer VS.. kamyer and HoXe vs.. HoXie
that this sum was the amount agreed upon an d
included $40 Tor court coSlS and SO Tor pub
licatiOn OF summons in the HOXie case, W har-
ton telling him that the summons must be
published mine times; that when the case
came on for hearing he said to Wharton,
You have not advertised" to which Whar-
ton replied that 1t was not necessary; that he
| and w nartOn both knew the summons had
not been served on HOXie because Wharton
told him so, and told him that divorces some
= ont1i6 hn nod TtrIfh 4
papers; that after the divorce in the HOXie
| case Wharton asked Mrs HoXie for So so to
| pay for copy of the decree IN that case. ka-
lnyer told him he could pay 1t out of the S 5
| which he had not used for advertising; that,
subsequently, he claimed balance of Sc due
HIM from harton, which the latter disputed
or refused. saying to kamyer he had better
| be quiet and not STIR up the HoXle case or he
| might be arrested for bigamy-
| An attempt to impeach the character OF
| Kamyer by proving that his reputation for
| truth was bad was made but without success
He was an old resident Sacramento a
plasterer by trade, and did much of that
| work as q contractor.
| An attempt was also made to impeach the
character of Stortz for truth. Without at
| tempting an analysis of the testimony, OF
| which there was about an equal amount on
both sides of the question, so 1ar as the mum
ber of witnesses is concerned, it is sufficient
| to say that the testimony against him was
| insufficient 10 show that his reputation
| which was confined within a limited range OF
acquaintance, for truth. honesty and integ-
rity was bad, and quite insufficient to justify
the court in dsregarding his testimony even
if it were unsupported by other facts in the
case.
With respect to the service of the summons
| in the Wharton suit, Stortz testified that
| Wharton invited him to go with him to the
| residence OF his wife to witness his will in hel
| favor; that at the house Wharton produced
paper which Wharton said was a will (and
| winch was. in fact, an Geographic wllD, q
, portion OF which Stortz heard Wharton read
to his wife, after which they returned to w har
tons office, and thereupon, being requested
to sign his name as a witness to the Will did
sign his name to what he supposed was such
| viii, and identities his signature at the foot o.
the affidavit OF service of summons; that he
did not scrutinize the paper at ALL and was
| not sworn.
Wharton's statement is that he invited
StortZ TO the house 10 witness the delivery OF
the will to his wife, and to let him know
| where his wife lived SO that he could serve
her with the summons, which service was
| made afterwards on the same day, ne was
informed by StortZ and as he AYERS sworn
to by Stortz before hun. This was on May
|. | hn do lo int