Bernards v. Grey

• Decision Date: 23 May 1950
• Citation: Bernards v. Grey, 97 Cal.App.2d 679, 218 P.2d 597 (Cal. App. 1950)
• Court: California Court of Appeals
• Parties: BERNARDS v. GREY et al. Civ. 14172.

Page 597

218 P.2d 597

97 Cal.App.2d 679

BERNARDS v. GREY et al.

Civ. 14172.

District Court of Appeal, First District, Division 1, California.

May 23, 1950.

H. J. Kleefisch, San Francisco, for appellant.

Howard C. Ellis, Bernard B. Glickfeld, San Francisco, for respondent.

SCHOTTKY, Justice pro tem.

Plaintiff and appellant on May 14, 1948, filed an action against the administrator of the Estate of Adrienne M. Grey, deceased, the complaint alleging that one Fred Watwood had obtained a judgment in December, 1944, against G. Borden Yount for $14,509.85, plus interest and costs; that said judgment had been recorded in the office of the Recorder for the City and County of San Francisco on January 5, 1945; that said judgment is final and unmodified and constitutes a valid lien against certain real property of G. Borden Yount in San Francisco; that before the present action was filed Watwood assigned the judgment in the prior action to the plaintiff herein, V. Bernards; that G. Borden Yount died on or about August 17, 1946, and at that time and at all times involved here he was the owner of two parcels of certain described and unimproved real property situated in San Francisco; that such property was subject to execution and that Yount, in order 'to conceal his ownership and interest in said property and to place the title to said property beyond the reach of the said judgment,' conveyed it to his daughter, Adrienne M. Grey (also known as Adrienne M. Blodgett); that such conveyance was made without consideration from Adrienne M. Grey, who 'took and at all time held said real property and the title thereto under said conveyances, in secret trust for and as the property of said G. Borden Yount'; that on or about January 17, 1946, prior to the death of G. Borden Yount, Adrienne M. Grey died intestate and thereafter the defendant, George Robert Grey, was appointed administrator of her estate, and, as such administrator, claimed that she was the owner of the real property and that it was not subject to the lien of the plaintiff; that plaintiff had no knowledge until May 3, 1948, of the death of G. Borden Yount, his ownership of the property or that it had been conveyed to and held in secret trust by Adrienne M. Grey; that no probate proceeding has been had in the matter of the estate of G. Borden Yount; and that the defendant is attempting to sell said real property 'at probate sale, as property purporting to be owned by said estate of Adrienne M. Grey, deceased, and in fraud of the rights and lien of plaintiff.'

Plaintiff prayed that G. Borden Yount be decreed the real owner of the property at the time the judgment was recorded 'and that said Adrienne M. Grey at the said time, and at the time of her death, held the same and the title thereto in secret trust for said G. Borden Yount' and that the plaintiff be decreed to have a lien against said real property.

Complaint and summons were served on defendant administrator on May 17, 1948. No answer was filed and at plaintiff's request a default was entered by the clerk on June 22, 1948, but no judgment was entered.

On July 10, 1948, the defendant filed a notice of motion to set aside the default 'on the grounds of inadvertence and excusable neglect of defendant.' Affidavits of the defendant and his attorney, Bernard Glickfeld, which accompanied the notice of motion, show that the summons was presented to the defendant on May 17 as he was standing outside the courtroom door in the county courthouse of Santa Clara County in San Jose and while talking with Mr. Glickfeld, Howard C. Ellis, the attorney of record for the Estate of Adrienne M. Grey, and John Goodwin, who represented the purchaser of one of the two parcels of land here in question. Such sale had just been approved by the court. The defendant in his affidavit alleges that such confirmation had been sought eleven days earlier, but the matter had been continued until May 17 on the representation of counsel appearing for this plaintiff and/or the Bank of America, and that on the 17th no appearance in opposition was made.

The defendant alleges further that at the time he received the summons and complaint he placed them in his brief case, merely noting that they referred to the present action, and 'through inadvertence, did not call to counsel's attention the papers he had received and was not at said time aware of their nature.' It was not until on or about July 1, 1948, that the defendant, having the matter called to his attention by his attorney, checked his files and brief case and found the documents.

In support of his motion to vacate the default, the defendant also served a copy of his proposed answer and an affidavit of merits prepared by Howard C. Ellis as attorney of record. The answer denied all the material allegations of the complaint, alleged that the Estate of Adrienne M. Grey is the owner of the property in controversy and that plaintiff was 'guilty of laches in not proceeding at an earlier time in order to enforce any rights therein which he may possess.' No counter affidavits were filed.

The motion to set aside the default was granted and order vacating default filed on August 5, 1948. Thereafter the cause was tried without a jury and judgment was rendered in favor of defendant. This appeal is from said judgment.

Appellant's first contention is that the trial court abused its judicial discretion in granting defendant's motion to vacate the default. While there is no appeal from an order setting aside a defendant's default upon which no judgment had been entered, said order not being either a final judgment or an order made after final judgment, Code Civ.Proc. § 963; Turner v. Follmer, 84 Cal.App.2d 815, 91 P.2d 777; Rauer's Law, § Collection Co. v. Standley, 3 Cal.App. 44, 82 P. 214; Sherman v. Standard Mines Co., 166 Cal. 524, 137 P. 249, yet, as said by this court in Hughson v. Superior Court, 120 Cal.App. 658, at pages 659-660, 8 P.2d 227, at page 228, 'although no direct or separate appeal lies from an order granting a motion to vacate a default upon which no judgment has been given (citing cases), it has been uniformly held that such an order is reviewable and may be annulled on an appeal from any adverse judgment which might afterwards be rendered in the action. (Citing cases.)' Appellants, therefore, upon this appeal from the judgment are entitled to make the point that the court erred in granting the motion.

In the recent case of Benjamin v. Dalmo Manufacturing Co., 31 Cal.2d 523, at page 525, 190 P.2d 593, 594, our Supreme Court said: 'It is well settled that appellate courts have always been and are favorably disposed toward such action upon the part of the trial courts as will permit, rather than prevent, the adjudication of legal controversies upon their merits. (Citing cases.) Apt expression of this attitude is found in Jones v. Title Guaranty & Trust Co., 178 Cal. 375, at pages 376-377 [173 P. 586, 587]: 'This court has always looked with favor upon orders excusing defaults and permitting controversies to be heard upon their merits. Such orders are rarely reversed, and never 'unless it clearly appears that there has been a plain abuse of discretion.'' * * *'

But, as said in the early case of Bailey v. Taaffe, 29 Cal. 423, at page 424: 'The discretion intended, however, is not a capricious or arbitrary discretion, but an impartial discretion, guided and controlled in its exercise by fixed legal principles. It is not a mental discretion, to be exercised ex gratia, but a legal discretion, to be exercised in conformity with the spirit of the law and in a manner to subserve and not to impede or defeat the ends of substantial justice. In a plain case this discretion has no office to perform, and its exercise if limited to doubtful cases, where an impartial mind hesitates. If it be doubted whether the excuse offered is sufficient or not, or whether the defense set up is with or without merit in foro legis, when examined under those rules of law by which Judges are guided to a conclusion, the judgment of the Court below will not be disturbed. If, on the contrary, we are satisfied beyond a reasonable doubt that the Court below has come to an erroneous conclusion, the party complaining of the error is as much entitled to a reversal in a case like the present as in any other.'

In 14 California Jurisprudence, at page 1075, it is stated: 'The policy of the law is to have every litigated case tried upon its merits; and it looks with disfavor upon a party who, regardless of the merits of his case, attempts to take advantage of the mistake, surprise, inadvertence or neglect of his adversary. The discretion of the court ought always to be exercised in conformity with the spirit of the law and in such manner as will subserve rather than defeat the ends of justice.'

The facts in Benjamin v. Dalmo Manufacturing Co., supra, bear a striking similarity to the facts in the instant case. It appeared in that case that the president 'upon receipt of the copies of summons and complaint by him and by the secretary, directed the secretary--who was also his private secretary--to forward the papers immediately to defendant's attorney; that the secretary 'misunderstood' the 'directions so given to her * * * and understood (the president) to say that she * * * was to file said papers in the office files'; that 'as a result of such misunderstanding' the secretary 'failed to forward' the papers to defendant's attorney; that neither of the affiant officers knew of the default 'until on or about January 16, 1946,' when the president received a letter from defendant's attorney stating that the latter had noticed that on the preceding day a judgment had been taken against defendant; and that the secretary thereupon forwarded the copies of the summons and complaint to defendant's attorney on January 17, 1946.' 31 Cal.2d at pages 526-527, 190 P.2d at page 595. The Supreme Court said, 31 Cal.2d at pages...