Gray v. Laufenberger
| Decision Date | 21 August 1961 |
| Citation | 195 Cal.App.2d Supp. 875,15 Cal.Rptr. 813 |
| Court | California Superior Court |
| Parties | 195 Cal.App.2d Supp. 875 Robert GRAY, Plaintiff and Appellant, v. Glen LAUFENBERGER, Defendant and Respondent. Civ. A. 89. Appellate Department, Superior Court, San Bernardino County, California |
Beardsley & Heap, Barstow, for appellant.
T. L. De Bord, Barstow, for respondent.
This is an appeal from an order granting motion to set aside entry of default and default judgment by the clerk.
On March 21, 1960, and upon request of counsel for plaintiff, the clerk of the trial court entered default of defendant. Thereafter, on May 31, 1960, judgment by default by clerk was entered in favor of plaintiff and against defendant in the sum of $2,395 plus costs of $16.
On September 15, 1960, defendant filed notice of motion under C.C.P. § 473 to set aside default and default judgment, and such notice was accompanied by declaration in support of motion and points and authorities. Although the judgment roll upon appeal does not include any proposed answer or other pleading, which is a mandatory requirement under C.C.P. § 473, the notice of motion recites that a demurrer and answer are 'herewith served'. Under similar and well established principles this Court must indulge in every presumption which favors the propriety and regularity of proceedings in the trial court. In addition, we note that appellant does not contend that the notice of motion is defective in this respect.
Hearing upon the motion was noticed for September 30, 1960, and, on that date, the trial court ordered the motion submitted for ruling. Thereafter, on October 14, 1960, the following entry was made:
On October 27, 1960, a 'Supplemental Declaration' of defendant was filed. This was followed by order of November 14, 1960, setting aside the default and default judgment.
It is appellant's position that (1) the original affidavit in support of the motion was fatally defective in failing to disclose the date when respondent discovered that default had been entered, and in failing to set forth facts showing diligence in giving notice of motion; and (2) that the action of the trial court in 'reopening' the motion after expiration of the six months period and permitting the filing of supplemental declaration was, in effect, allowing the filing of a new motion to vacate after expiration of the statutory jurisdictional period; that the court then had no jurisdiction to rule upon the motion.
Before further discussing the contentions of appellant, we should note our opinion that the entry of default judgment by the clerk upon the second cause of action in the complaint was not authorized under the provisions of C.C.P. § 585(1). This cause of action alleges the sale by plaintiff to defendant of a 50 per cent interest in a certain cafe, in consideration of 'a 10 per cent interest in the net profits of said cafe, a VAC Tractor and ten tons of hay'; that 'On information and belief' the net profits were $300, the tractor reasonably worth $1,500, and market value of the hay was $300; that the defendant failed and refused to pay over and deliver any of said items.
The authority of the clerk to enter default judgments is limited to 'an action arising upon contract for the recovery of money or damages' (C.C.P. § 585(1), and may be exercised only where there is a contract from which it appears that a defined or liquidated sum of money is to be paid, or where the sum to be paid is a matter of mere mathematical computation (Miller v. F. M. W. Drilling Co., 140 Cal.App.2d 728, 295 P.2d 412). When the taking of evidence, or exercising of judicial discretion is necessary, then the judgment must be by the court under C.C.P. § 585(2), and after the taking of an account or proof of any fact deemed necessary by the court to support the cause of action (Lynch v. Bencini, 17 Cal.2d 521, 110 P.2d 662). To the extent that the default judgment is based upon the second cause of action it is void as the unauthorized act of the clerk (Baird v. Smith, 216 Cal. 408, 14 P.2d 749; Farrar v. Steenbergh, 173 Cal. 94, 159 P. 707; Vol. 2 Witkin California Procedure page 1697).
The action of the trial court in setting aside the default and default judgment is discretionary, and a reviewing court will not interfere except upon a showing that such discretion has been abused (Freeman v. Goldberg, 55 Cal.2d 622, 12 Cal.Rptr. 668; Davis v. Davis, 185 Cal.App.2d 788, 8 Cal.Rptr. 874; Johns v. Curry, 189 Cal.App.2d 94, 10 Cal.Rptr. 882; Williams v. Bronston, 190 Cal.App.2d 812, 12 Cal.Rptr. 463).
Appellant's contentions, upon this appeal, are primarily founded upon his theory that the trial court acted without jurisdiction in granting of the motion under the circumstances hereinbefore discussed. Respondent urges that assuming, arguendo, the original declaration was insufficient, the trial court was vested with jurisdiction upon filing of the notice of motion, and its subsequent action in 'reopening' the motion to permit filing of supplemental affidavits did not affect such status at the time of original filing.
'(a) Notion of motion;
'(b) Declaration or affidavit showing a good excuse for default and a memorandum of points and authorities in support of motion;
'(c) Additional declaration to affidavit of merits or pleading showing a...
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...supplemental affidavits to support his motion. (Estate of Parks, 206 Cal.App.2d 623, 630, 24 Cal.Rptr. 250; Gray v. Laufenberger, 195 Cal.App.2d Supp. 875, 878, 15 Cal.Rptr. 813; Roseborough v. Campbell, 46 Cal.App.2d 257, 262, 115 P.2d 839.) Hamblin neither filed additional affidavits nor ......
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