Montgomery v. Norman
| Decision Date | 27 October 1953 |
| Parties | MONTGOMERY v. NORMAN. Civ. 4828. |
| Court | California Court of Appeals Court of Appeals |
Charles A. Prince, Beverly Hills, Joe Mayer, Los Angeles, for appellant.
Tudor Gairdner, Los Angeles, for respondent.
On January 23, 1953, plaintiff filed a complaint for money claimed due on a contract which was made payable in Texas. He obtained a writ of attachment and attached certain real property of defendant. Defendant filed a motion to require security for costs and to have the writ of attachment discharged, and filed a demurrer to the complaint on February 11. On February 18, prior to the ruling on the demurrer, plaintiff filed an amended complaint containing an additional allegation that defendant, in California, orally agreed to pay the amount claimed. On February 25, the hearing was had on the demurrer and pending actions. The motion to quash the writ was denied without prejudice. The demurrer was sustained and plaintiff was ordered to deposit an undertaking for costs within 30 days. Some confusion arises in reference to the time given defendant to plead to the amended complaint. The rough minutes of the clerk indicate (1) that plaintiff was to post the bond 'within 30 days' from February 25th; (2) 'Demurrer is sustained, 10 days to plead to amended complaint'. Defendant gave notice to plaintiff of the ruling on the demurrer and that the court had granted defendant Norman '10 days after notice of filing undertaking within which to plead to amended complaint'. On March 10, 1953, plaintiff mailed to defendant's attorney a notice that he had filed the cost bond required. On (Sunday) March 22, 1953, plaintiff mailed to the clerk of the court a request to enter default of defendant, and on Monday, March 23, at 9 a. m. the clerk entered the default, and on March 25th entered judgment by default. Defendant, on March 23, mailed a demurrer to the amended complaint to the county clerk, and a copy to plaintiff. It was not until April 1st, 1953, when the parties were arguing the demurrer before the court, that defendant was apprised of the default. Thereafter, he moved to set it aside and also the judgment that followed, on the grounds that the default was prematurely entered by the clerk. Counsel for plaintiff admitted in his affidavit, on the hearing, that the court granted defendant ten days after notice of filing the undertaking within which to answer the amended complaint, and alleges that such notice was mailed on March 10, and was received by defendant on March 11.
It is plaintiff's argument that on March 10th, notice of the filing of the undertaking by mail from Beverly Hills to counsel for defendant in Los Angeles was given; that the time to answer expired on March 20, and that service by mail was complete at the time of the deposit in the post office; that defendant was therefore in default on March 23rd, and that it was timely and properly entered by the clerk, citing secs. 585, 1012, and 1013 of the Code of Civil Procedure and such cases as Gossman v. Gossman, 74 Cal.App.2d 233, 168 P.2d 495; and McDonald v. Lee, 132 Cal. 252, 64 P. 250.
Defendant concedes that service may be made by mail and the service is complete at the time of deposit, but contends that Sec. 1013, supra, provides that 'if, within a given number of days after such service, a right may be exercised, or an act is to be done by the adverse party, the time within which such right may be exercised or act be done, is extended one day, together with one day additional for every full 100 miles distance between the place of deposit and the place of address, if served by different post offices, but such extension shall not exceed thirty days in all.'
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...* * *" (Hayashi v. Lorenz, 42 Cal.2d 848, 851, 271 P.2d 18, 19.) It may be set aside on the court's own motion (Montgomery v. Norman, 120 Cal.App.2d 855, 858, 262 P.2d 360), and by a judge other than the one who made it (Myers v. Washington, 211 Cal.App.2d 767, 771, 27 Cal.Rptr. 778; Ross v......
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Poster v. Southern Cal. Rapid Transit Dist.
...522 [§ 1013 extends statutory time for filing a petition for administrative mandamus pursuant to § 1094.5]; Montgomery v. Norman (1953) 120 Cal.App.2d 855, 262 P.2d 360 [§ 1013 extended the 10-day period to answer where a demurrer for plaintiff's failure to post security was overruled and t......
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County of Ventura v. Tillett
...a judgment is void, it must be set aside and no affidavit of merits or other showing of a defense is required. (Montgomery v. Norman (1953) 120 Cal.App.2d 855, 858, 262 P.2d 360.) In a contested proceeding, no court may render judgment without conforming to the constitutional guarantees whi......
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...on it may be made at any time. (Buckner v. Industrial Acc. Comm., 226 Cal.App.2d 619, 623, 38 Cal.Rptr. 332; Montgomery v. Norman, 120 Cal.App.2d 855, 858, 262 P.2d 360; Forbes v. Hyde, 31 Cal. 342, 347.) The court has the right and power at any time to vacate a void entry of default and a ......