Chung Gee v. Quan Wing

Decision Date21 March 1951
Citation103 Cal.App.2d 19,229 P.2d 50
CourtCalifornia Court of Appeals Court of Appeals
PartiesCHUNG GEE et al. v. QUAN WING et al. Civ. 14450.

Thomas J. Riordan, Ralph Bancroft, San Francisco, for appellants.

Alden Ames, Paul Taylor, San Francisco, for respondents Quan Wing and Quan Yow Yuen.

SCHOTTKY, Justice pro tem.

Plaintiffs and appellants commenced this action against defendants and respondents on February 19, 1949 to set aside a judgment recovered in the Superior Court of Los Angeles County by Quan Wing and Quan Yow Yuen (defendants and respondents here) against the Kwong Yick Company (plaintiff and appellant here). The complaint alleged, in substance, that respondent Quan Wing was a partner in the firm of Kwong Yick Company; that he and his attorney in fact, respondent Quan Yow Yuen, by falsely conspiring with defendant Quan Min pretended that defendant Quan Min was a member of the copartnership of Kwong Yick Company, and obtained the judgment against appellants by default judgment entered after service upon said Quan Min; that said Quan Min was not a partner in the firm of Kwong Yick Company and that respondents Quan Wing and Quan Yow Yuen intentionally withheld from the court the fact that Quan Wing was a partner and the fact that Quan Min was not a partner in Kwong Yick Company; that appellants were not indebted to respondent Quan Wing, as alleged in the said action filed in Los Angeles County; and that said judgment was obtained by extrinsic fraud and is void.

Issue was joined and after a trial the court found, among other things, that the judgment in favor of respondent Quan Wing and against appellants was in all respects duly and regularly entered; that appellants had full knowledge of the commencement of said action and of the service of summons upon Quan Min, one of the partners of said copartnership in March 1947; that it was not true that defendants Quan Wing, Quan Yow Yuen and Quan Min conspired together to obtain said judgment; that Quan Min was a copartner and had all the powers and responsibilities of a partner of said firm; that it is not true that said judgmnt was obtained by extrinsic fraud. Judgment was entered in accordance with said findings and this appeal is from said judgment.

The record discloses that on February 21, 1947, Quan Wing and Quan Yow Yuen (defendants and respondents here) commenced an action in the Superior Court of Los Angeles County against the Kwong Yick Company and a writ of attachment was issued and levied upon money in two banks in the account of said company. Complaint and summons were served upon Quan Min in Los Angeles on March 3, 1947, and he sent same to Kwong Yick Company in San Francisco. The company took the matter up with their attorney, who testified at the trial that they informed him that Quan Min was not a partner, and that he then advised them that no valid judgment could be obtained against them if Quan Min was not a partner. The default of Kwong Yick Company was entered on March 19, 1948 and on April 6, 1948 judgment was entered in the Los Angeles action. A writ of execution was issued on October 25, 1948 and levied by the Sheriff of the City and County of San Francisco. Appellants then made a motion in the Superior Court of Los Angeles County to set aside the judgment which motion was denied on January 18, 1949. Appellants appealed from that ruling but dismissed the appeal and on February 18, 1949 filed the present action.

At the trial in the court below appellants contended vigorously that Quan Min was not a partner and most of the evidence in the case was directed to that issue. However the court, upon sufficient evidence, found that Quan Min was a partner, and appellants stated that no attack will be made upon that finding in this appeal.

We have, therefore, a situation in which an action was commenced by Quan Wing, whom the court in the instant case found to be a partner, against Kwong Yick Company, a copartnership, for money claimed to be due to him from said company. Service of summons was made upon Quan Min, whom the court in the instant case likewise found to be a partner in Kwong Yick Company, and no answer having been filed, the default of the copartnership was entered more than a year after service of summons and a judgment was thereafter rendered. Appellants now contend that respondent Quan Wing should have disclosed to the court that he was a partner of Kwong Yick Company and that the judgment was obtained as the result of extrinsic fraud practiced upon the trial court in that respondents failed to disclose to the court that their claim was based upon a partnership debt between the partners and that no accounting has been had between the partners.

After the time for an appeal has expired, and after the 6 months period set forth in section 473 of the Code of Civ.Proc. has expired, a judgment of a court can only be set aside in an independent action in equity if there has been extrinsic fraud or mistake. The rule is well expressed in Westphal v. Westphal, 20 Cal.2d 393, at page 397, 126 P.2d 105, at page 106, as follows:

'The final judgment of a court having jurisdiction over persons and subject matter can be attacked in equity after the time for appeal or other direct attack has expired only if the alleged fraud or mistake is extrinsic rather than intrinsic. (Citations.) Fraud or mistake is extrinsic when it deprives the unsuccessful party of an opportunity to present his case to the court. (Citations.) If an unsuccessful party to an action has been kept in...

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6 cases
  • Davis v. Davis
    • United States
    • California Court of Appeals Court of Appeals
    • 31 Octubre 1960
    ...Antonsen v. Pacific Container Co., 48 Cal.App.2d 535, 120 P.2d 148; Rogers v. Mulkey, 63 Cal.App.2d 567, 147 P.2d 62; Chung Gee v. Quan Wing, 103 Cal.App.2d 19, 229 P.2d 50; Wells v. Zenz, 83 Cal.App. 137, 256 P. 484. Thus, this divorce, when secured, was subject to being set aside because ......
  • Muller v. Reagh
    • United States
    • California Court of Appeals Court of Appeals
    • 30 Enero 1957
    ... ... Peterson, 220 Cal. 739, 32 P.2d 612; Westphal v. Westphal, 20 Cal.2d 393, 126 P.2d 105; Chung ... Gee v. Quan Wing, 103 Cal.App.2d 19, 229 P.2d 50; Hammell v. Britton, supra, 19 Cal.2d 72, ... ...
  • Muller v. Muller
    • United States
    • California Court of Appeals Court of Appeals
    • 23 Mayo 1956
    ...13 L.R.A. 336; La Salle v. Peterson, 220 Cal. 739, 32 P.2d 612; Westphal v. Westphal, 20 Cal.2d 393, 126 P.2d 105; Chung Gee v. Quan Wing, 103 Cal.App.2d 19, 229 P.2d 50; Hammell v. Britton, 19 Cal.2d 72, 119 P.2d 333. Appellant, as already held, was validly served with process, and had bee......
  • Cuevas v. Kiguelman, G044495
    • United States
    • California Court of Appeals Court of Appeals
    • 29 Junio 2011
    ...In such situations, the court's equity powers are limited to those situations involving extrinsic fraud or mistake. (Chung Gee v. Quan Wing (1951) 103 Cal.App.2d 19, 21.) "Extrinsic fraud occurs when a party is deprived of the opportunity to present his claim or defense to the court; where ......
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