Wallace v. Center

67 Cal. 133 | Cal. | 1885

Ross, J.

It appears from the record that on the 19th of July, 1865, Elizabeth Perkins commenced au action against the defendants. ' Years passed, and' finally, ón" the 18th of September, 1876, the cause was regularly called: for trial in the late Fourth District Court, and no one appearing on the part of the plaintiff, the defendants, by their counsel, moved the court to dismiss the action for want of prosecution, and judgment of dis-" missal'was accordingly entered and recorded on the 19th of-' October, 1876. Term after term of the District Court' passed, and no motion of any character was made-in the case. The' statutory time of one year allowed for appeal from the judgment elapsed without appeal; the court itself went out of existence with the year 1879, and was succeeded by the Superior Court created by the new Constitution, and-to that court" there was presented, on the 1st -of August, 1882, an affidavit stating that Elizabeth Perkins died on the 3d day of November, 1875, prior ’ to the judgment of dismissal, and upon that affidavit, and the suggestion of the death of Elizabeth Perkins, an order was made by the Superior Court, substituting James Wallace, administrator of the estate of Elizabeth Perkins, as plaintiff in the case. And subsequently, upon notice given to the former counsel of the defendants, and based upon the affidavit showing the death of the original plaintiff, the Superior Court made an order vacating and setting- aside- the judgment of dismissal. The appeal is from that order.

It iá entirely clear that the- order can only be sustained upon the theory that the judgment of dismissal was absolutely void; and that it was not so is shown by the recent case, entitled Phelan v. Tyler, 64 Cal. 80. The right to attack the judgment for “irregularities” was" long since lost by lape of time.

Order reversed.

McKee, J., and McKinstry, J., concurred.