Airline Transport Carriers v. Batchelor

• Citation: 227 P.2d 480,102 Cal.App.2d 241
• Decision Date: 13 February 1951
• Docket Number: No. 14522,14522
• Court: California Court of Appeals
• Parties: AIRLINE TRANSPORT CARRIERS, Inc. v. BATCHELOR. Civ.

Page 480

227 P.2d 480

102 Cal.App.2d 241

AIRLINE TRANSPORT CARRIERS, Inc. v. BATCHELOR.

Civ. No. 14522.

District Court of Appeal, First District, Division 2, California.

Feb. 13, 1951.

Christin, Keegan & Carroll, and Charles A. Christin, all of San Francisco, for appellant.

Perry H. Taft, San Carlos, for respondent.

SCHOTTKY, Justice pro tem.

On March 31, 1949, respondent filed an amended complaint in the City and County of San Francisco to recover judgment against appellant for money had and received for the use of respondent. Service of summons was made upon appellants in the County of Los Angeles on April 11, 1949. Clerk's default was entered on May 13, 1949. On July 7, 1949, a default judgment was entered against appellant. On September 30, 1949 appellant served and filed a notice of motion to set aside the default judgment on the grounds of surprise, inadvertence and excusable neglect. With said notice appellant also served and filed his answer, the affidavit of his counsel, and his own affidavit in which appellant prayed for leave to plead to the complaint.

On October 24, 1949 the motion was heard and granted by the court and the following minute order was entered by the clerk: 'In this action respective counsel being present, and the court orders the motion to set aside and vacate judgment by default be granted as to defendant, George Batchelor, said defendant to file bond in the sum of $3,000 within five days.'

On November 17, 1949, counsel for appellant was served with an order to show cause why judgment should not be entered, and judgment forthwith issued against said bond on the ground that the default entered on May 13th had not been set aside.

On December 3, 1949 appellant served and filed a notice of motion to correct the said minute order and said motion and the order to show cause were heard by the court. On December 22, 1949 the court denied the motion to correct the minute order, ordered appllant's answer stricken from the files, ordered that judgment be entered against appellant and that execution issued upon appellant's cash bond. Judgment was accordingly entered and execution issued, and this appeal is from the order denying the motion to correct the minute order, the order granting the order to show cause why judgment should not be entered, and the judgment.

Appellant contends that under § 473 of the Code of Civ.Proc., when a motion to set aside a default judgment accompanied by a prayer to plead to the compliant is made before the default has become final, and is granted, but relief predicated upon the terms that petitioners file a bond substantially in the amount of the judgment prayed for in the compliant, the order implied that the default is likewise set aside so that the petitioner may plead to the merits.

Appellant quotes the portion of said § 473 which reads: 'The court may, upon such terms as may be just, relieve a party or his legal representative from a judgment, order, or other proceeding taken against him through his mistake, inadvertence, surprise or excusable neglect. Application for such relief must be accompanied by a copy of the answer or other pleading proposed to be filed therein, otherwise the application shall not be granted, and must be made within a reasonable time, in no case exceeding six months, after such judgment, order or proceeding was taken. * * * (Italics added.)' He argues that the requirement that a copy of the pleadings accompany the application for relief shows that the intention of the statute is to permit the petitioner to answer on the merits. He points out that the notice of motion filed in the instant case informed respondent that the motion would be based 'on the affidavits of George Batchelor and Thomas J. Keegan and the answer of defendant George Batchelor, which papers are on file herein * * *;' and that the affidavit of appellant referred to the entry of the default, prayed that the judgment entered by default be vacated and that he be allowed to plead to said complaint.

Appellant relies strongly on the case of Weck v. Sucher, 96 Cal.App. 422, 274 P. 579. In that case a default was entered upon failure to answer and a default judgment was thereafter entered. Defendant filed a motion to set aside the judgment 'upon the ground that said judgment was taken through mistake and surprise and excusable neglect', and filed affidavits in support thereof. After hearing the court made an order that the motion be granted and that 'said judgment * * * is hereby set aside, annulled and vacated.' The plaintiff appealed from such order. In its opinion affirming the judgment the court said 96 Cal.App. at page 426, 274 P. at page 581:

'Further contention is made that the moving papers and the order based thereon relate exclusively to the matter of vacating the judgment rendered by the court, and consequently do not affect the default entered by the clerk. Plaintiff did not question the scope of the motion at the time it was presented and determined; the bill of exceptions reciting merely that he appeared and opposed the granting of the motion upon the grounds of an insufficient showing under section 473 of the Code of Civil Procedure. However, even assuming that he may do so now, we find no merit in the point because the terms of said motion and the contents of the documents attached thereto adequately apprised plaintiff that defendants were seeking to obtain complete relief under section 473 from the effect of their default, and in our opinion the order subsequently made by the court pursuant to said motion is legally sufficient, in form and substance, to grant such relief.'

Respondent, in reply states that Weck v. Sucher 'has no bearing on the issues herein because it involved a motion to set aside default rather than the more restricted notice of motion to set aside a default judgment involved in the instant case.' We have examined the transcript in the cited case and find that respondent's statement is in error, and that the motion and order in that case were as hereinbefore set forth.

Respondent argues that 'if a default has been entered and a default judgment has been rendered, two separate and distinct proceedings have occurred' and that 'application for relief therefrom would consequently require a Notice of Motion reaching both the default itself and the default judgment.'

Respondent cites the case of Title Insurance and Trust Co. v. King Land and Development Co., 162 Cal. 44, 120 P. 1066, which was a case in which appeals were taken from an order denying several motions of the appealing defendants to set aside a judgment and to relieve them from a default entered against them. The motion to set aside the judgment and default was made more than a year after the entry of the default and nearly 3 months after the entry of the judgment. The Supreme Court in affirming the order pointed out that more than 6 months had elapsed since the entry of the default and that said default could therefore not be set aside, and then stated that it would therefore be of no avail to set aside the judgment.

Respondent also cites Brooks v. Nelson, 95 Cal.App. 144, 272 P. 610, 611, which also was an appeal from an order refusing to vacate a default judgment. In that case the default of defendant was entered by the Clerk on November 29, 1924. On February 11, 1925 the defendants made a motion to set aside the default which was denied. On June 19, 1925, judgment by default was rendered by the court and on July 14, 1925 defendants made a motion, under § 475 of Code of Civ.Proc. to vacate and set aside the judgment which motion was denied. In affirming the order the appellate court said that the date of the entry of the default and not the entry of the judgment fixed the beginning of the 6 months within which application for relief for default must be made under said § 473, and that 'Therefore, if the motion made on July 14, 1925, be considered a motion to vacate the default, as well as the judgment, it is clear that it was made too late.

'The setting aside and vacating the judgment alone, which was all the relief sought in said motion, would have been an idle act, because the default, entered on November 29, 1924, would have stood undisturbed. The default cut off defendants from making any further opposition or object to the relief which plaintiff's complaint shows he is entitled to demand.'

Prior to the oral argument counsel for respondent addressed a letter to the court calling attention to the recent case of Howard Greer Custom Originals v. Capritti, 35 Cal.2d 886, 221 P.2d 937, which also was an appeal from an order denying a motion to set aside a default judgment. In that case a default was entered against defendant and he then...