Crane v. Kampe

• Decision Date: 28 February 1964
• Citation: 225 Cal.App.2d 200,37 Cal.Rptr. 220
• Court: California Court of Appeals Court of Appeals
• Parties: Dora May CRANE, Plaintiff and Appellant, v. Fred W. KAMPE et al., Defendants and Respondents. Civ. 297.

Page 220

37 Cal.Rptr. 220

225 Cal.App.2d 200

Dora May CRANE, Plaintiff and Appellant, v. Fred W. KAMPE et al., Defendants and Respondents.

Civ. 297.

District Court of Appeal, Fifth District, California.

Feb. 28, 1964.

Vizzard, Baker, Sullivan & McFarland and James Vizzard, Bakersfield, for appellant.

Roland S. Woodruff, Bakersfield, for respondents.

RALPH M. BROWN, Justice.

Appellant appeals from an order of the trial court entered on June 20, 1963, setting aside a default judgment in favor of appellant and against respondents.

The appellant filed a complaint verified by her attorney on information and belief against David F. Thren, C. E. Langford, individually, and doing business as the Thunderbird Drive-In Theatre and doing business as the Langford Theatres, Ltd., and respondents, Fred W. Kampe and Minnie Kampe. This complaint alleged that the plaintiff was the owner of Lot 82 of Virginia Colony Tract which was served by water through an easement across adjacent Lots 83 and 84, which Lots 83 and 84 she alleged were owned by defendants Thren and Langford; that 'the defendants' had joined together to install a drive-in theatre on their property and in so doing combined together to destroy and fill in the ditch across said lots; that plaintiff had notified the defendants and each of them that such ditch destruction would deprive her of water; that said defendants destroyed said ditch and that she was damaged by reason of said action; and that such constitutes a continuous trespass. She requested that a mandatory injunction should issue requiring defendants to replace said ditch, and prayed for general damages and punitive damages. A judgment of dismissal as to David F. Thren only was filed on November 17, 1961, and service was made upon Daniel F. Thren, sued and served as a John Doe defendant.

Defendant Langford filed a general answer to the complaint but the other defendants, including the respondents, failed to make any appearance. Default judgments were taken against Daniel F. Thren and respondents on July 20, 1962, and a judgment of $1,175 against Thren and respondents was entered on August 9, 1962, but there was no decree on the requested injunction.

Subsequently a settlement was made between the appellant and Langford, and a dismissal was filed as to him on June 27, 1962. Daniel F. Thren was released from the effect of the judgment against him by the payment of $250 as a partial satisfaction, which partial satisfaction of judgment was filed on August 10, 1962.

On April 23, 1963, the attorneys for appellant filed an affidavit to obtain an order in supplementary proceedings. On April 30, 1963, the attorney for respondents filed a notice of motion to vacate the judgment by default and submitted therewith the affidavit of respondent Fred W. Kampe in support of the motion. This affidavit set forth that respondents had heretofore owned Lots 83 and 84 of Virginia Colony Tract; that they sold said property on December 8, 1960, to Langford and his wife who were at that time advised of the ditch rights of the appellant; that sometime thereafter Langford and Thren had taken possession of said premises and the ditch was interfered with by Langford and Thren in the construction of a drive-in theatre; that the affiant was advised that Langford and Thren as owners of the property were going to provide adequate means for water to flow across said property; that upon service of the summons and complaint in this matter the respondents, not understanding why they were named in the action but believing that the appellant was not aware that they had sold the property prior to the acts of interference, went to see Mr. Langford and advised him of the summons and complaint, that Langford told him that this matter was Langford's responsibility and that his attorneys would take care of it, that it was unnecessary for respondents to employ an attorney, that their rights would be protected, and that they should forget the whole thing. The affidavit goes on to state that the respondents relied on these representations and further, their belief was based on the fact that they had nothing to do whatever with the interference of the easement; they did not appear in said action nor did they employ counsel, but took the advice of Mr. Langford; the respondents were not advised of the request to enter a default nor that a judgment of default was entered against them in August 1962 and knew nothing of it until after said judgment was entered; upon hearing that fact, they sought out counsel who thereupon filed the notice of motion and affidavit. The affidavit further stated that respondents had a good and sufficient defense to said action on the merits of the case.

Appellant's attorney then filed an affidavit in opposition to said motion to vacate default judgment. By minute order on June 17, 1963, the motion to vacate judgment by default was granted, and respondents' answer to the complaint was filed on that date. In their answer, respondents denied all the allegations contained in the complaint and set forth an affirmative defense that the respondents had divested themselves of ownership and possession of the property and that any interference with or obstruction to the said easement was done by the new owners and was not done 'by or with the knowledge or consent of these answering defendants.'

The affidavit filed by appellant's attorney in opposition to the motion alleged that as the attorney for appellant he was informed that the defendant Langford was operating a drive-in theatre on property adjacent to appellant's property; that inquiries were made to the Planning Commission to see whether or not a permit had been issued and that the names of the respondents were mentioned as having some interest in the theatre, that no title search was made on the property but that appellant did obtain certain information from the Planning Commission records that Thren and Langford owned undivided interests therein, and that thereupon appellant filed a complaint against all the defendants to clarify the interests as to each and every defendant in the theatre and in said land.

With regard to the default judgment against respondents, the affidavit of appellant's attorney states that the appellant appeared in court on the default judgment and testified as to her understanding of the interests of Thren and respondents and that 'Said testimony of the plaintiff was admittedly based upon hearsay, which is admissible in a default matter.'

It is interesting to note that while in the complaint the appellant alleged that she had 'notified the defendants, and each of them, that the destruction of said ditch would deprive her of water for the irrigation of her said land, * * *' her attorney in his affidavit states that the said respondents have not exercised diligence or care of any sort to file an appearance in the above entitled matter and that affiant had not been contacted by the respondents but in fact that 'Dora May Crane does not know the defendants Kampe and has never had any conversation with either of them.'

Appellant contends that the court abused its discretion in setting aside the default judgment.

This proceeding is not brought under section 473 of the Code of Civil Procedure but is a motion addressed to the equity power and as said in Olivera v. Grace, 19 Cal.2d 570, at page 576, 122 P.2d 564, at page 567, 140 A.L.R. 1328, 'Where the court that rendered the judgment possesses a general jurisdiction in law and in equity, the jurisdiction of equity may be invoked by means of a motion addressed to that court.' We do not think that the trial court abused its discretion in granting relief from default as to extrinsic mistake of fact. See Hill v. Johnson, 194 Cal.App.2d 779, 15 Cal.Rptr. 236, and Evry v. Tremble, 154 Cal.App.2d 444, 448, 316 P.2d 49.

In Vinson v. Los Angeles Pac. R. Co., 147 Cal. 479, at page 483, 82 P. 53, at page 54, the court stated:

'Whether or not the circumstances of a particular case are such that the mistake or inadvertence should be excused is a question the determination of which must, of necessity, be left largely to the court to which application is made; and it is well settled that this court will not interfere with the exercise of the discretion of that tribunal, except in a case where a clear abuse of discretion is apparent. Particularly is this so where the discretion is exercised in favor of the granting of the relief sought, as such action tends to bring about a conclusion on the merits, which is always to be desired.'

The general rule is set forth clearly in Waybright v. Anderson, 200 Cal. 374, 377, 253 P. 148, 149, as follows:

'Preliminary to a consideration of the propriety of the trial court's action in the instant cases it may be stated that the authorities uniformly declare that a motion to set aside a default judgment is addressed to the sound discretion of the trial court, and in the absence of a clear showing of abuse in the exercise thereof, an appellate court will not disturb the order of the court below. [Citations.]

'Moreover, it is the policy of the law to favor, wherever possible, a hearing on the merits, and appellate courts are 'much more disposed to affirm an order when the result is to compel a trial upon the merits than it is when the judgment by default is allowed to stand, and it appears that a substantial defense could be made.'' See also the case of Berri v. Rogero, 168 Cal. 736, at...