City and County of San Francisco v. Carraro

• Court: California Court of Appeals
• Writing for the Court: KAUFMAN
• Citation: 28 Cal.Rptr. 680
• Parties: CITY AND COUNTY OF SAN FRANCISCO, a municipal corp., Plaintiffs and Respondents, v. Frank CARRARO and Lena Carraro, Defendants and Appellants. Civ. 20033.
• Decision Date: 18 February 1963

Page 680

28 Cal.Rptr. 680 CITY AND COUNTY OF SAN FRANCISCO, a municipal corp., Plaintiffs and Respondents,
v.
Frank CARRARO and Lena Carraro, Defendants and Appellants. Civ. 20033. District Court of Appeal, First District, Division 2, California. Feb. 18, 1963.
For Opinion on Rehearing, see 33 Cal.Rptr. 696.

William Steinberg, San Francisco, for appellants.

Thomas M. O'Connor, City Atty. of the City and County of San Francisco, John J. Taheny, Jr., Deputy City Atty., San Francisco, for respondent.

KAUFMAN, Presiding Justice.

This is an appeal by the property owners, Frank and Lena Carraro, from a default judgment in favor of the City and County of San Francisco, in an action in eminent domain, and from the order denying their motion to set aside entry of default and default judgment. The City commenced its action on December 5, 1955, to condemn in fee the interests in six parcels of land owned by the appellants for public use as a portion of John McClaren Park. On February 29, 1960, by written substitution of attorneys, William Steinberg and Abraham Berry were appointed as attorneys of record for the appellants. In March, 1960, the appellants, by Mr. Berry, filed a notice of motion to amend the answer, which motion was orally presented in court on March 28, 1960. All of the parties stipulated through their respective attorneys, in writing, that the date of the valuation which was to be the measure of compensation for all the property to be taken was to be September 6, 1960. At 9:30 a. m. on October

Page 681

24, 1960, the case was called for trial by the presiding judge and assigned to Judge Caulfield's department and proceeded to trial in the absence of appellants or their counsel.

The record before us does not contain any notice of time and place of trial as required by section 594 of the Code of Civil Procedure and furthermore, the record before us does not show that proof of service of such notice was made to the trial court at the time of trial. Code of Civil Procedure section 594 requiring service of notice of time and place of trial and proof of service when an adverse party is absent is mandatory. Mere knowledge of a probable date of trial is not sufficient notice of time and place of trial (Payer v. Mercury Boat Co., 195 Cal.App.2d 659, 16 Cal.Rptr. 123; Hurley v. Lake County, 113 Cal.App. 290 at pp. 295-296, 298 P. 123 at p. 125; Simon v. Tomasini, 97 Cal.App.2d 115 at p. 123, 217 P.2d 488 at p. 493).

The record before us...