126 Cal. App. 590 | Cal. Ct. App. | 1932
This is an appeal from an order of the superior court setting aside and vacating a default judgment obtaaned-after publication of summons.
The proceedings herein were instituted by petitioners, Walter Leo Whitesell and Carol Georgia Whitesell, under the provisions of the Land Title Law adopted by the initiative method at the general election of November 3, 1914. The petition was filed on December 20, 1928. In it petitioners alleged that they were owners in fee simple, as joint tenants of certain described land, and that William C. LaBerge, whose address was unknown to them, claimed some right, title or interest in the premises adversely to petitioners which said claim was alleged to be without right. The prayer of the petition was for a decree quieting the title of petitioners to the property. Thereupon, the court ordered that notice of the filing of the petition be given as provided in the act and that it be published for the required time. In compliance with the court’s order, notice of the filing of the petition was published and a copy of the notice was mailed to said William C. LaBerge, in an envelope addressed to him, in care of the county clerk of Los Angeles County, for the reason that his address could not, with reasonable diligence, be ascertained. Due proof of the publication and mailing of said notice was made and the court' thereafter,
In support of their appeal from the order vacating the decree and granting permission to respondent to file her answer, appellants first contend that the court was without jurisdiction to make such an order. As upholding the con
In conformity with the policy thus established of viewing the statute as a remedial provision to be liberally construed and in accordance with the decision in Beggs v. Riordan, supra, we entertain no difficulty in holding that the court-had jurisdiction to make the order vacating the judgment.
The second contention advanced by appellants is that the court erred "in holding that respondent is entitled to the relief sought under the above-quoted clause of section 473 of the Code of Civil Procedure. In this connection, it is pointed out that she is not a defendant in the proceeding and it is confidently asserted that she is not the legal representative of a defendant. It must be conceded that she was not made a defendant in the proceeding since the only defendant named in the petition is William C. LaBerge. It must also be conceded that it is at least doubtful whether she may properly be considered to be the legal representative of William C. LaBerge, since her affidavit filed in support of her motion for relief shows that she claims title in herself by virtue of a deed executed in her favor more than seven months prior to the filing of the petition for registration by appellants. Her claim therefore has no reference to the proceeding herein instituted by appellants nor to the fact that her grantor is the defendant in such proceeding. However, in order that we may arrive at a proper determination of whether the court erred in granting her application for relief, some consideration of the result sought to be achieved by the proceeding here instituted is required. The court found that all persons interested in the action have either filed their assent to the registration or have been duly and
The final contention presented by appellants is that; the court erred in vacating the judgment and in permitting respondent to answer to the merits for the reason that such action affected the rights of purchasers of the property who acquired title subsequent to the rendition of the decree, in good faith, for valuable consideration, and without notice of any claim of respondent in such property. The record herein shows that the fact of the transfer of the property by appellants subsequent to the rendition of the decree to bona fide purchasers for a valuable consideration was alleged in the affidavit of appellant Walter Leo Whitesell filed in opposition to respondent’s motion to set aside the default judgment. An affidavit of appellants’ counsel also filed in opposition to respondent’s motion alleges that the deed from defendant William C. LaBerge to respondent dated May 11, 1928, was recorded December 17, 1929, one year lacking three days subsequent to the filing of the petition for registration of the property by appellants and seven months and seventeen days after the entry of the decree of registration sought to be vacated by respondent. This fact is not contradicted. The question presented for determination is whether under these facts the trial court had any discretion in passing upon the motion and if so whether it was abused. In the early case of Roland v. Kreyenhagen, 18 Cal. 455, the facts are strikingly similar to those which are here presented. In a suit to recover possession of certain land the defend
In Gray v. Lawlor, supra, the Supreme Court points out the distinction between that clause of section 473’ of the Code of Civil Procedure, which authorizes a court to relieve a party from a judgment, order or other proceeding taken against him through his mistake, inadvertence, surprise or excusable neglect and the clause which authorizes a court to allow a defendant who has not been personally served with summons in an action, to answer to the merits of the action at any time within one year after the rendition of judgment. When there has been no personal service of summons upon a defendant it is declared that the defendant need not present any excuse for his failure to appear except the fact that he was not personally served with the summons. The above-cited decisions seem to indicate that in cases where summons has not been personally served upon a defendant the court has no discretion and is required, upon production by such defendant, within one year after rendition of judgment, of an affidavit showing the fact of no personal service of summons in the action, to set aside the judgment and permit the defendant to answer to the merits. The doctrine that a defaulting defendant who has not been personally served with process in an action is entitled as a matter of right to be permitted to plead to the merits of the suit within a period of one year after the rendition of judgment against him and that the court has no discretion but is required to grant the relief upon a showing that such defendant has not been personally served with process has received one material modification. In Boland v. All Persons, etc., supra, the court in discussing that clause of section 473 of the Code of Civil Procedure, which permits the granting of relief to a defendant not personally served with process, says:
“In applications for relief under this clause of the section there is no presumption of neglect, as in eases where there has been personal service. The party is not required, in the first instance, to do more than show that he has not been personally served and that he has a good defense to the action on the merits which he could have presented had he*600 been informed of its pendency. (Gray v. Lawlor, 151 Cal. 354 [12 Ann. Cas. 990, 90 Pac. 691].) But his opponent may show, in opposition to the application, that the applicant had actual notice of the action in time to have entered an appearance and present the defense, and that the failure to do so was owing to his neglect or to his consent to the judgment. In that event a ease arises for the exercise of the discretion of the court and' it must determine whether or not the laches is of a character that should preclude the relief. (Bogart v. Kiene, 85 Minn. 262 [88 N. W. 748]; Mueller v. McCulloch, 59 Minn. 409 [61 N. W. 544] ; Keenan v. Daniells, 18 S. D. 102 [99 N. W. 853] ; Blyth v. Swenson, 15 Utah, 352 [49 Pac. 1027] ; Jordan v. Hutchinson, 39 Wash. 373 [81 Pac. 867].)”
In Palmer v. Lantz et al., 215 Cal. 320 [9 Pac. (2d) 821], it is said: ‘1 Service by publication and mailing a copy of the complaint and summons is not personal service (Lilly-Brackett Co. v. Sonneman, 157 Cal. 192 [21 Ann. Cas. 1279, 106 Pac. 715), however, and by reason of this fact appellant contends that under section 473 of the Code of Civil Procedure he is entitled to be relieved from the default as a matter of right without further showing than that he was not personally served. (Daniel v. Colkins, 201 Cal. 10 [255 Pac. 182], and cases there cited.) That this is sufficient to make a prima facie case for relief must be conceded. The law presumes from the fact of constructive service only that the failure to answer is due to lack of notice of the service. (Gray v. Lawlor, supra.) But the provision is not designed to afford relief from a judgment which may be validly entered upon constructive service to those who with full knowledge of such service upon them, by reason of receipt of a copy of the summons and complaint through the mail, remain inactive. (Gray v. Lawlor, supra; Boland v. All Persons, etc., 160 Cal. 486 [117 Pac. 547].)” It therefore appears that there may be circumstances when the court in passing upon an application for relief under the clause of section 473 of the Code of Civil Procedure, under consideration, will be called upon to exercise its discretion. In the instant case, however, no showing was made by appellants that respondent had actual knowledge of the pendency of the action in time to make an appearance and present her defense prior to the rendition of judgment. What was
In conclusion, it may be remarked that in the order from which this appeal is taken, the court granted the relief upon
For the reasons herein stated the order from which this appeal is taken is affirmed.
Barnard, P. J., and Marks, J., concurred.
A petition for a rehearing of this cause was denied by the District Court of Appeal on November 1, 1932, and an application by appellants to have the cause heard in the Supreme Court, after judgment in the District Court of Appeal, was denied by the Supreme Court on December 1, 1932.