Brockman v. Wagenbach

• Decision Date: 18 July 1957
• Citation: 313 P.2d 659,152 Cal.App.2d 603
• Court: California Court of Appeals Court of Appeals
• Parties: Mitchell M. BROCKMAN, Administrator of the Estate of Herman Feldman, Deceased, substituted as Plaintiff in place of Herman Feldman, Deceased, Plaintiff and Appellant, v. Erwin Edward WAGENBACH, Defendant and Respondent. Civ. 22020.

Page 659

313 P.2d 659

152 Cal.App.2d 603

Mitchell M. BROCKMAN, Administrator of the Estate of Herman Feldman, Deceased, substituted as Plaintiff in place of Herman Feldman, Deceased, Plaintiff and Appellant, v. Erwin Edward WAGENBACH, Defendant and Respondent.

Civ. 22020.

District Court of Appeal, Second District, Division 3, California.

July 18, 1957.

Milton Wichner, Los Angeles, for appellant.

Dryden, Harrington, Horgan & Swartz and Vernon G. Foster, Los Angeles, for respondent.

PARKER WOOD, Justice.

Appeal by plaintiff from an order (1) granting defendant's motion to set aside a default judgment (after publication of summons), and (2) allowing defendant to file an answer.

Appellant contends that the court abused its discretion in making the order, and that the order is contrary to law.

Defendant Erwin Edward Wagenbach will be referred to as the defendant.

On March 18, 1953, Herman Feldman commenced an action for damages for personal injuries received on April 12, 1952, when an automobile, driven by defendant, backed into him while he was walking across a street at an intersection.

An order for publication of summons was made on February 2, 1955. The order recited that defendant could not after due diligence be found within the state. An affidavit of publication of summons was filed on March 28, 1955. The default was entered on August 3, 1955, and judgment upon the default was entered September 2, 1955, for $5,144.37.

Mr. Feldman died February 4, 1955; and on August 24, 1955, Mitchell M. Brockman, administrator of the estate of Herman Feldman, was substituted as plaintiff in the place of Herman Feldman.

On March 14, 1956, defendant filed a notice of motion to set aside the default judgment, and for an order permitting defendant to file his verified answer. The notice of motion recited that the original of the verified answer was attached to the notice. It appears, however, that the proposed answer was not attached to the notice but was filed on the same day that the notice of motion was filed. Affidavits in support of, and in opposition to, the motion were filed. On March 28, 1956, a minute order was made which stated: 'Motion Granted.' The appeal is from that minute order.

Appellant (plaintiff) argues that the court abused its discretion in granting the motion, for the reasons that: defendant had knowledge of the pendency of the action since January, 1954, and he unreasonably and in had faith delayed entering his appearance in the action; he has not shown that he has a meritorious defense; plaintiff has been prejudiced by the delay; and the default of defendant has not been vacated.

Section 473a of the Code of Civil Procedure provides: 'When from any cause the summons in an action has not been personally served on the defendant, the court may allow, on such terms as may be just, such defendant or his legal representatives, at any time within one year after the rendition of any judgment in such action, to answer to the merits of the original action.'

An affidavit of Lowell L. Dryden (one of the attorneys for the defendant), in support of the motion, was in substance as follows: he is one of the attorneys for the Northwest Casualty Company; the files in his office reflect that summons and complaint in the case were delivered to his office on January 29, 1954, and the files informed him that the summons had been served on John Schuman, defendant's brother-in-law, at 2041 Catalina Street; a special appearance was entered for the purpose of making a motion to quash the service of summons; the motion was granted; at the time of transmittal of the summons and complaint, affiant was not authorized by defendant or anyone to accept service of the summons and complaint; affiant has examined the file in the matter and feels that defendant has a good and meritorious defense to the issues in the matter; affiant first learned that default judgment had been entered on March 7, 1956; he acted in good faith and with due diligence to cause the default to be set aside.

An affidavit of Victor C. Monk, in support of the motion, was in substance as follows: he is an adjuster employed by the Northwest Casualty Company; he informed the attorney for plaintiff that he could not accept service of process 'upon the defendant'; he had not conspired with defendant or any one to obstruct or evade the service of process.

An affidavit of defendant, in support of the motion, was in substance as follows: he resides at 2041 Catalina Street, Los Angeles; he has been a resident of Los Angeles County since 1913, except that he was in the armed services from 1941 to 1946 and he resided in Montana from 1946 to 1952; in January, 1952, he returned to Los Angeles County and 'took up residence' at 1748 North Verdugo Road; in February, 1953, he purchased a home at 2331 Mira Vista, Montrose; in March, 1953, he went to Europe, and he remained there until September, 1953, when he returned to California and took up residence at 2331 Mira Vista; in March, 1955, he was divorced and has since resided at 2041 North Catalina Street, Los Angeles; at all times mentioned (in the affidavit), 'with the exceptions noted,' he has been a bona fide resident of Los Angeles County; he has not been personally served with summons or complaint in the matter, nor has he been served by mail or in any manner with a copy of the summons and complaint; during his residence in California, he has not made any effort to avoid service of process in this proceeding; he has not conspired with Victor C. Monk or anyone or made any effort to avoid service of process; he has a good and meritorious defense to the matter as appears by his answer, a copy of which is attached to his affidavit; he had no knowledge that a judgment had been rendered against him until March 7, 1956, and upon ascertaining 'the same' he has, with due diligence, urged the court to set aside the default judgment.

An affidavit of Milton Wichner (attorney for plaintiff), in opposition to the motion to set aside the judgment, was in substance as follows: the cause of action arose on April 12, 1952; several days later, affiant was 'contacted' over the telephone by Victor C. Monk who stated that he was the adjuster for Northwest Casualty Company, the insurance carrier for defendant, and he was investigating the claim of Herman Feldman; thereafter, negotiations for compromise of Mr. Feldman's claim were conducted between affiant and Monk until January 28, 1953, when affiant wrote to Monk, and stated: 'As you can understand, the time is running quickly in this matter and unless we arrive at a mutually acceptable settlement, I shall be compelled to file my action within the next twenty days'; the action was filed on March 18, 1953, and a copy of the summons and complaint was delivered to the marshal at Glendale with instructions to serve defendant at 1748 North Verdugo, Glendale, the address listed in the police report; the marshal returned the summons with a certificate that he was unable to serve the defendant for the reason defendant had moved and gone to Europe; affiant states upon information and belief that, at all times after February 1, 1954, defendant knew of the pendency of the action; at all times since said February 1 defendant was represented by counsel who knew of the pendency of the action; Mr. Feldman died on February 4, 1955; affiant states upon information and belief that defendant has no meritorious or any defense to the action; defendant has not acted in good faith, has not exercised due diligence, and has been guilty of inexcusable neglect. Mr. Wichner also stated in said affidavit that he incorporated therein, by reference, all the affidavits on file in the action which were in support of plaintiff's request for publication of summons; and that he also incorporated therein, by reference, his affidavit which was in opposition to the motion to quash service of summons.

An affidavit of Herman Feldman, in support of his application for an order for publication of summons, was in substance as follows: defendant conceals himself to avoid service of summons; there has not been filed in the recorder's office any certificate of residence as provided in section 1163 of the Civil Code. (This section has been repealed.)

An affidavit of Milton Wichner, in support of the application for order for publication of summons, was in substance as follows: he is the attorney for plaintiff; on March 21, 1953, he requested that the marshal serve defendant at the address of defendant listed in the police report, of the Glendale police, as 1748 North Verdugo, Glendale, California; the marshal returned the summons with a certificate that he was unable to effect service upon defendant for the reason defendant 'had moved and gone to Europe'; affiant retained the services of Jack Burke, a private investigator, to trace defendant; in January, 1954, Burke expressed the belief that defendant resided at 2041 North Catalina, Los Angeles; affiant instructed Burke to serve the summons and complaint upon the party believed to be defendant; about February 5, 1954, defendant made a special appearance in the action, through his attorneys Sampson and Dryden, moving to quash the service of summons; in support of the motion, an affidavit of John Schuman was filed, stating that he was the brother-in-law of defendant, that at all times since August 8, 1953, defendant was a resident of Los Angeles County and was available for personal service within the county, and the alleged service was made upon Schuman and not upon defendant; the motion to quash was granted; all efforts of Burke to trace defendant were unavailing; on August 7, 1953, affiant asked the Department of Motor Vehicles for the address of defendant; that department stated that his address was 1748 North Verdugo Road, Glendale; on October 1, 1954, affiant checked again with the department to ascertain the address of defendant, and was advised that as of ...