151 P. 153 | Cal. Ct. App. | 1915
An appeal has been taken in this action from the judgment as entered against the plaintiffs, and from an order refusing to vacate that judgment. The judgment was entered after failure to amend the complaint within the time allowed by the court and extended by stipulation of counsel. The motion to vacate the judgment was based upon an attempted showing of excusable neglect.
This action was commenced in the year 1912 for the purpose of having set aside a judgment of foreclosure against real property alleged to have been procured on or about the thirty-first day of July, 1911, in which action these plaintiffs were defendants. The complaint here sets out two alleged causes of action, in the first of which it is alleged that the real property affected by the decree of foreclosure was the property of plaintiff Anna M. Hawley, and that she was not served with summons or any process in the foreclosure action. In the second alleged cause of action there is added the allegation that C. O. Hawley, her husband, acting without her knowledge or consent, permitted a voluntary appearance to be made in the foreclosure suit on behalf of his wife. It will be noted that more than a year elapsed from the date of the judgment in the foreclosure suit to the time this action was commenced. From affidavits filed on the motion to set aside the judgment entered herein, it appears that demurrers had *43
previously been sustained to the complaint, and to the first amended complaint filed by these plaintiffs. The ground assigned for demurrer was that sufficient facts were not stated to constitute a cause of action as to either count of the complaint. We have first to consider as to whether the demurrer to the second amended complaint was well taken. It is alleged that the plaintiff Anna M. Hawley "had no knowledge of any legal proceeding brought by any person or persons against her in connection with the property hereinbefore mentioned; and said plaintiff further alleges that she has never, with her knowledge or consent, appeared or authorized any appearance for her in any manner whatsoever in connection with any legal proceedings connected with the herein described property, except such proceedings as were begun by her subsequent to July, 1912." This allegation appears in the statements of both alleged causes of action. From this allegation it cannot be told at what time the plaintiff Anna M. Hawley obtained knowledge of the fact that judgment had been entered against her in the foreclosure suit; for aught that is shown, she may have had that knowledge immediately upon the entry of that judgment. Section
The judgment is reversed.
Conrey, P. J., and Shaw, J., concurred.
A petition for a rehearing of this cause was denied by the district court of appeal on July 24, 1915.