Reeves v. Hutson
| Decision Date | 14 September 1956 |
| Citation | 301 P.2d 264,144 Cal.App.2d 445 |
| Court | California Court of Appeals Court of Appeals |
| Parties | H. R. REEVES, Plaintiff and Appellant, v. Charles S. HUTSON, American Supply Company, a corporation, Defendants and Respondents. Civ. 16783. |
Lorne M. Stanley, San Francisco, for appellant.
Howard C. Ellis, Bernard B. Glickfeld, San Francisco, for respondents.
Plaintiff secured a default judgment against defendants. Subsequently the default was set aside. Thereafter, the trial court entered an order quashing execution, an order dismissing the action, and an order denying plaintiff's motion to restrain defendants from disposing of property or to post bond. From these three orders plaintiff appeals.
The facts are somewhat confusing. On October 18, 1949, plaintiff brought an action in San Francisco against defendants for $13,563.14 for services rendered and for money had and received. Service was had on defendants in Santa Cruz County on October 19, 1949. About November 15, 1949, the attorney for defendants, Howard Ellis, secured from Lorne Stanley, attorney for plaintiff, an extension of time to plead to December 19, 1949. Defendants failed to plead within the time thus extended. On December 21, 1949, plaintiff caused defendants' default to be entered and judgment on default was entered on December 28, 1949. Ellis learned of the entry of the default on January 4, 1950, and moved to have it set aside on January 12, 1950. With this motion defendants filed their proposed answer denying liability and various affidavits. Ellis' affidavit filed in support of the motion avers that when he secured the extension in November of 1949 he and Stanley were on friendly terms, and he, Ellis, believed that Stanley would not take a default without some warning; that during this period, both before and after the action was filed, there were settlement discussions between counsel; that between October, 1949, and January 4, 1950, affiant was overwhelmed with an accumulated press of business and out of his office much of the time; that because of his secretary's neglect and inadvertence the date of the extended time to plead was not put on his calendar, nor was the file placed on his desk; that affiant discovered on January 4, 1950, that through oversight the time for answering had expired; that he immediately telephoned Stanley to request additional time to plead and was then informed of the entry of the default judgment; that affiant requested that the default be set aside by stipulation, but Stanley refused to so stipulate.
The motion to set aside the default was opposed. On April 28, 1950, Judge Theresa Meikle caused to be entered an 'Order Setting Aside Default and Default Judgment Upon Condition.' This order reads, in part, as follows:
'That the default and default judgment heretofore entered in the above-entitled matter be and the dame is set aside upon the following express terms and conditions:
'1. That the Defendants pay to Plaintiff for and on account of costs incurred in said action the costs as taxed herein;
'2. That the Defendants pay to the attorney for Plaintiff the sum of $200.00 as part consideration of this order--The default not to be set aside until the payment of costs and attorney fees is paid;
'3. That the books and records of the Defendant corporation be brought from its principal place of business in the County of Santa Cruz to the City and County of San Francisco and made available for the inspection by the attorney for Plaintiff, at the office of the certified accountant at all times;
No appeal was taken from thid order, but on November 26, 1951, some 19 months after it was entered, plaintiff moved to have it set aside and the judgment restored on the ground that the conditions contained in the order had not been performed. Stanley so averred. Ellis filed a counter-affidavit alleging that he and his clients had complied with the order; that on May 12, 1950, he wrote Stanley requesting a cost bill; that he received no reply; that on May 31, 1950, he wrote to Judge Meikle informing her that he was holding $200 in his trust account for disposition of the matter, and requesting instructions as to its disposition; that Judge Meikle, under date of June 5, 1950, suggested that the money be deposited in court and Stanley notified; that on June 9, 1950, affiant deposited $225 with the clerk of the court and Stanley was notified; that plaintiff made no demand for the money or for the books of defendant, and never submitted a cost bill; that the books and records of defendants have been available; that on June 19, 1950, affiant notified Stanley that the books of defendants were in affiant's office and could be seen in affiant's office or in the office of the named accountants; that on November 29, 1951, affiant withdrew the money deposited with the clerk and sent Stanley a check for $215.75 for the attorneys' fees and costs and again told him that the books were available at the accountant's office; that Stanley refused to accept the check.
On December 4, 1951, Judge Sweigert denied the motion to set aside the order setting aside the default and to restore the judgment. No appeal was taken from this order.
Nothing further occurred until December 1, 1954, on which date plaintiff, ex parte, secured an order from Judge Neubarth for a writ of execution, and levied on certain property of defendants located in Santa Cruz County. Defendants secured several ex parte stays of execution, and then, on January 3, 1955, moved to quash the execution and moved to dismiss the action. The affidavit of Ellis filed in support of the motions avers that all the conditions of the order of April 28, 1950, have been complied with, and that the action should be dismissed because more than five years had elapsed since its commencement. Affidavits of the accountants also averred that the books of defendants, describing them, were available for inspection at their office, but that no demand for such inspection had ever been made. Plaintiff filed cross-affidavits averring that the books in the possession of the accountants were not complete. On January 28, 1955, Judge Neubarth filed an order quashing the execution. This is one of the orders appealed from, and involved on this appeal.
On February 21, 1955, Judge Neubarth entered an 'Order Dismissing Action of Plaintiff Pursuant to Section 583 of the Code of Civil Procedure,' expressly finding that defendants had complied with all conditions of the order of April 28, 1950; that Judge Sweigert had so determined by his order of December 4, 1951; that no judgment existed since defendants had complied with the April 28, 1950, order; that the action was commenced on Cotober 18, 1949, and more than five years have elapsed since its commencement. Plaintiff has appealed from this order.
On March 14, 1955, plaintiff moved for an order restraining defendants from transferring or mortgaging certain property upon which plaintiff had previously levied, or to post bond, until the validity of the order of February 21, 1955, could be finally determined. This motion was denied March 16, 1955, by the late Judge Deasy. Plaintiff has appealed from this order.
Appellant first attacks the validity of the order setting aside the default made on April 28, 1950, on the ground that the supporting affidavits do not show the required inadvertence, mistake, surprise or excusable neglect. This attack assumes that the validity of that order is reviewable on this appeal. This assumption appears to be contrary to the applicable law. Of course, an unconditional order made under either section 473 or section 663 of the Code of Civil Procedure granting a motion to vacate a prior judgment is an appealable order, being a special order after final judgment. Colby v. Pierce, 15 Cal.App.2d 723, 59 P.2d 1046; Casner v. Superior Court, 23 Cal.App.2d 730, 74 P.2d 298; Harth v. Ten Eyck, 12 Cal.2d 709, 87 P.2d 693. In the instant case, the order setting aside the default was made subject to certain conditions. In such event, if the conditional order is self-executing, so far as the conditions are concerned, it is still a final order and is appealable. Paul v. , walburn, 135 Cal.App. 364, 26 P.2d 1002. On the other hand, if the order setting aside the default on condition contemplates a second order unconditionally vacating the judgment, then the original order is interlocutory and non-appealable. Hayes v. Pierce, 18 Cal.App.2d 531, 64 P.2d 728; Aalwyn's Law Inst. v. San Francisco, 39 Cal.App. 365, 178 P. 966. While it must be conceded that the order of April 28, 1950, is somewhat ambiguous, it is susceptible of the reasonable interpretation that it is self-executing. The very first sentence of the order provides that the default judgment 'is set aside.' Then the order provides that the 'default not to be set aside until the payment of costs and attorney fees.' These become express conditions procedent which, upon performance, made the order immediately effective. The conditions in the order about inspection of the books were not made conditions precedent but were made simple directives or orders. So construed, which construction is reasonable, the order of April 28, 1950, was a self-executing order that set aside the default the moment the conditions precedent--the paymemt of costs and attorney fees--were performed. It was, therefore, in our opinion, an appealable order.
But even if the order of April 28, 1950, be considered as an interlocutory order, and therefore non-appealable, then there would be no doubt at all that the order of December 4, 1951, refusing to set aside the default and to restore the judgment was a special order...
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