Hudson v. Hutchason

• Decision Date: 26 May 1959
• Citation: 171 Cal.App.2d Supp. 869,340 P.2d 756
• Court: California Superior Court
• Parties: 171 Cal.App.2d Supp. 869 Stanley L. HUDSON, etc., et al., Plaintiffs, v. John H. HUTCHASON et al., Defendants, John H. Hutchason and Joe S. Hutchason, Defendants and Appellants, Sineo Joseph Daniele, Defendant and Respondent. C. A. 9759. Appellate Department, Superior Court, Los Angeles County, California

Page 756

340 P.2d 756

171 Cal.App.2d Supp. 869

Stanley L. HUDSON, etc., et al., Plaintiffs, v. John H. HUTCHASON et al., Defendants, John H. Hutchason and Joe S. Hutchason, Defendants and Appellants, Sineo Joseph Daniele, Defendant and Respondent.

C. A. 9759.

Appellate Department, Superior Court, Los Angeles County, California.

May 26, 1959.

DeForrest Home and Albert Hampton, Los Angeles, for appellants.

Samuel Z. Winnikoff, Los Angeles, for respondent.

DAVID, Judge.

On May 13, 1958, judgment was rendered against defendants Hutchason and Daniele in a personal injury action, as joint tort feasors. The cause of action upon which this judgment was based accrued in April, 1957. By definition, a cause of action 'accrues' when suit may be brought thereon. Hutchasons paid the judgment in full, and proceeding under Code of Civil Procedure §§ 875-880 inc. (Cal.Stats.1957, ch. 1700) secured a judgment for contribution against Daniele as joint tort feasor, entered on July 8, 1958, unopposed the hearing. Upon January 14, 1959, Daniele made a motion to vacate the judgment of contribution.

The motion was made on the ground of mistake and excusable neglect of defendant Daniele and his attorney; and the meritorious defense asserted, was that the code provisions for contribution were not applicable, since C.C.P. § 880 provides 'This title shall become effective as to causes of action accruing on or after January 1, 1958.'

1. The record shows that the 'Notice of Motion to Enter Judgment against Joint Tort Feasor' was duly served by mail on all necessary parties including respondent. It further shows that there was 'No appearance for defendant Daniele' at the hearing of the motion. There is no evidence as to why Daniele's attorney did not then appear and no evidence except hearsay why Daniele was not there. These facts should have been shown by competent evidence at the hearing of the motion to vacate the judgment of contribution. Lacking such evidence, there was no showing that the order was entered by surprise, inadvertence or excusable neglect. Colvin v. Sibley, 1953, 117 Cal.App.2d 144, 255 P.2d 16; Gray v. Sabin, 1890, 87 Cal. 211, 25 P. 422; Smith v. Tunstead, 1880, 56 Cal. 175; Romero v. Snyder, 1914, 167 Cal. 216, 138 P. 1002; Vallejo v. Green, 1860, 16 Cal. 160; Reilly v. Ruddock, 1871, 41 Cal. 312; Williamson v. Cummings Rock Drill Co., 1892, 95 Cal. 652, 30 P. 762; Farias v. Farias, 1917, 33 Cal.App. 237, 164 P. 818; Ross v. San Diego Glazed Cement Pipe Co., 1920, 50 Cal.App. 170, 194 P. 1059; Dusy v. Prudom, 1892, 95 Cal. 646, 30 P. 798; Brooks v. Johnson, 1898, 122 Cal. 569, 55 P. 423; Yancey v. National Benevolent Ass'n, 1898, 122 Cal. 676, 55 P. 604.

Since a showing of excusable neglect is jurisdictional in relief against a judgment, the order must be reversed on this ground. There is grave doubt that the court had jurisdiction to act on the date of the order. Jones v. Alexander, 1950, 101 Cal.App.2d 44, 224 P.2d 870; Brownell v. Superior Court, 1910, 157 Cal. 703, 710, 109 P. 91; Barry v. Barry, 1954, 124 Cal.App.2d 107, 111, 268 P.2d 147.

2. Under the formerly prevailing rule, (Pacific Indemnity Co. v. California Electric Works, 1938, 29 Cal.App.2d 260, 84 P.2d 313), a judgment against joint tort feasors was joint and several, and contribution, except in special cases, could not be compelled. The question here, is whether the provisions of C.C.P. § 880, making the contribution procedure apply to 'causes of action accruing on or after January 1, 1958' has reference to the cause of action under which such joint liability arose, or the new cause of action for contribution. This new cause...