165 Cal. 587, S. F. 5967, Osmont v. All Persons

Docket Nº:S. F. 5967
Citation:165 Cal. 587, 133 P. 480
Opinion Judge:HENSHAW, Judge
Party Name:AUGUSTA C. OSMONT et al., Respondents, v. ALL PERSONS etc., Defendants and Respondents; ELIZABETH A. HEYDENFELDT et al., Appellants
Attorney:James G. Maguire, and Lent & Humphrey, and R. P. Henshall, and Luther Elkins, Amici Curiae, for Appellants. Drown, Leicester & Drown, for Plaintiffs and Respondents. Smith & Pringle, James A. Ballentine, Frank Shay, Charles F. Hanlon, Campbell, Metson, Drew, Oatman & MacKenzie, and Percy V. Long,...
Judge Panel:JUDGES: Henshaw, J. Lorigan, J., and Melvin, J., concurred.
Case Date:June 12, 1913
Court:Supreme Court of California
 
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Page 587

165 Cal. 587

133 P. 480

AUGUSTA C. OSMONT et al., Respondents,

v.

ALL PERSONS etc., Defendants and Respondents; ELIZABETH A. HEYDENFELDT et al., Appellants

S. F. No. 5967

Supreme Court of California

June 12, 1913

Page 588

Department Two

Hearing in Bank denied.

APPEAL from an order of the Superior Court of the City and County of San Francisco denying a motion for an order setting aside the default of all persons and vacating a judgment entered for the plaintiffs in a proceeding to establish title to land under the so-called McEnerney Act. James M. Seawell, Judge.

It follows herefrom that the court's order refusing to vacate appellants' default was proper and it is therefore affirmed.

COUNSEL

James G. Maguire, and Lent & Humphrey, and R. P. Henshall, and Luther Elkins, Amici Curiae, for Appellants.

Drown, Leicester & Drown, for Plaintiffs and Respondents.

Smith & Pringle, James A. Ballentine, Frank Shay, Charles F. Hanlon, Campbell, Metson, Drew, Oatman & MacKenzie, and Percy V. Long, City Attorney, for other Respondents.

JUDGES: Henshaw, J. Lorigan, J., and Melvin, J., concurred.

OPINION

HENSHAW, Judge

Page 589

[133 P. 481] This action, brought under the McEnerney Act, was commenced in August, 1909. Plaintiffs pleaded their deraignment of title through and under the decree of distribution given in the estate of Solomon Heydenfeldt, deceased, by which decree the land involved in the action was distributed to one Mangels, by him deeded to Thomas M. Osmont, the husband of Augusta C. Osmont, and upon the death of Thomas M. Osmont, intestate, the vestiture of title in them as heirs. Trial was had, findings were signed on September 17, 1909, and filed on September 18, 1909, upon which last named day the judgment was entered. This judgment decreed title in plaintiffs to certain specific interests in the properties. Upon the morning of September 16, 1910, appellants served their notice of motion to set aside the default of all persons who did not appear in the action and to set aside and vacate the judgment and decree and to permit the moving parties to answer. This motion was noticed for 1:45 p. m. of the same day on which the notice was served. At that time the notice and the affidavits annexed thereto were filed and the moving parties asked the court to grant the motion. The hearing was continued by the court to September 23rd. On that day the plaintiffs presented and filed written objections and grounds of opposition. On the 19th day of December, 1910, the court denied the motion in a written opinion, stating: "I am forced to conclude that inasmuch as more than one year has elapsed since the rendition of the judgment, this court has no power to set aside the judgment or to permit an answer to be filed by the moving parties." At the hearing of this motion at 1:45 p. m. of September 16th, not only were the plaintiffs represented, but the city and county of San Francisco and the Southern Pacific Company, both parties in interest, appeared by their attorneys in opposition to the motion. Upon objection by these attorneys that the motion should be denied, since the moving parties had neglected to file an affidavit of merits, and after the hearing had been [133 P. 482] continued as above stated, the moving parties, without notice to any one, appeared in court at 4 o'clock of the afternoon

Page 590

of the same day, and presented a new motion to the same effect, which new motion was based upon the same grounds and supported by the same affidavits, orders, papers, records, and files, with the addition of affidavits of merit made by Elizabeth A. Heydenfeldt and Elfin O. Heydenfeldt, the moving parties. We will, however, treat these two motions as one, not only because they were so treated by the trial court, but because the second motion was without notice, and was made when the previous noticed motion covering the same subject matter had been continued by the court. The second motion being without notice could not properly have been decided by the court at the time when appellants asked for the court's ruling. (Brownell v. Superior Court, 157 Cal. 703, [109 P. 91]; Andreen v. Andreen, 15 Cal.App. 728, [115 P. 761] .) The court therefore properly continued the hearing, and at the hearings that were subsequently had the two motions, if they may be called two motions, were treated as merged and were decided as one.

The motion is founded upon the oft-quoted language of section 473 of the Code of Civil Procedure, providing for the opening of defaults and permission to answer within a year in cases where the summons in the action has not been personally served on the defendant, -- the moving party. The...

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