119 Cal. 107 | Cal. | 1897
Appeal from an order setting aside and vacating a default judgment rendered against defendant, and recalling an execution issued thereon.
The grounds of the motion on which the order was made were mistake, inadvertence, and excusable neglect in not answering plaintiff’s amended complaint; that the amended complaint changed the cause of action, and was not personally served on defendant, and on the further ground that the judgment was procured by fraud and without notice to defendant. It is not questioned by respondent that the judgment is regular on its face.
Appellant contends that the motion came too late, and ought not to have been granted on any of the grounds stated. It was filed six months and eleven days after judgment was entered.
1. Eespondent concedes appellant’s point as to the motion being too late on the grounds of defendant’s mistake, inadvertence, or excusable neglect, under section 473 of the Code of Civil-Procedure, but he contends that another provision of that section covers the case, to wit: “When, from any cause, the summons in an action has not been personally served on the defend
Appellant’s attorney, however, did serve the amended complaint upon respondent’s attorney by leaving a copy thereof in his office, and it was received liy him and due return of the service was made, on which the default was entered, but appellant’s attorney did not personally serve it upon respondent. It is this action of appellant’s attorney that constitutes the gravamen of the charge of fraud.
Whatever may be the truth as to the allegation of respondent in this particular, we think the amended complaint was entitled to he filed as of course, being the first amendment, there having been no trial on the issue of law. (Code Civ. Proc., sec. 473.) And it was properly served upon the attorney of record. (Code Civ. Proc., secs. 385, 1011, 1015.) The alleged fraud is a matter which cannot he considered in construing the provisions of the code relied upon by respondent. There was no such amendment as required a summons to issue, and, as the summons to the action was in fact personally served, the clause re
3. Eespondent claims that the court had authority to grant the motion on the ground of fraud, independent of section 473, and cites numerous authorities in support of his contention. They have had careful examination, but they do not conflict with other decisions of this court adverse to respondent’s position. They are mainly cases where the judgment showed on its face that it was void for want of jurisdiction or other cause, and where relief was sought by bill in equity. In such cases it is held, as was said in Wharton v. Harlan, 68 Cal. 422: “We are not aware that it has been held that a void judgment, entered on default by the clerk, must be attacked by motion within six months.....We are convinced that the court may at any time set aside a judgment by default by the clerk when it appears from the roll that the clerk had no power to enter it.” We think that this is the distinguishing point of difference in the eases cited and the case before us. It was further said in the case referred to: “There is reason for sending a defendant into a court of equity which does not apply when the judgment is void for defects appearing in the roll (Code Civ. Proc., see. 670, subd. 1), and which thus bears on its face the evidence of invalidity.”
It was therefore held in Wharton v. Harlan, supra, that “by the terms of section 473 the motion must be made within six months, even though the mistake, inadvertence, surprise, or excusable neglect has been caused or brought about by fraud practiced by the party in whose favor the judgment or proceeding was taken. After that period the question of mistake, etc. (whatever the remedy in equity), cannot be tried by affidavit.”
In Dyerville Mfg. Co. v. Heller, 102 Cal. 615, the grounds upon which the application was made were excusable neglect and fraud practiced upon the court by plaintiff’s former»counsel by procuring the judgment to be given in excess of the stipulation. It was claimed that, as the judgment was procured by fraud, the provisions of section 473 do not apply. But the court held that this point was expressly decided against respondent’s claim in
In the case before us, the application was undoubtedly made under section 473, but that fact alone should not deprive respondent of his relief outside this section, if the showing entitles him to it. We think, however, the rule is, and should be, that where the judgment does not show on its face that it is void, and the motion is not made under and within the time prescribed by that section, the party should be remitted to his equitable action. We have in the case at bar an example of a judgment regular on its face, with no question as to the jurisdiction of the court to make it. The motion to set it aside was not made within the time prescribed by any statute. It was a motion that would have been good if it had been made within the time and had been supported by the facts. We think it was error to grant the relief on motion. (Moore v. Superior Court, 86 Cal. 495, and cases there cited; Jacks v. Baldez, 97 Cal. 91.)
3. The motion to dismiss the appeal has already been denied, and, although argued in respondent’s brief, we cannot reconsider the order heretofore made. Respondent made default, and no motion has been made to reopen the default nor for a rehearing of the motion.
The order vacating the judgment and recalling the execution should be reversed.
Searls, C., and Belcher, C., concurred.
For the reasons given in the foregoing opinion the order vacating the judgment and recalling the execution is reversed.
Garoutte, J., Van Fleet, J., Harrison, J.