Stegge v. Wilkerson
| Decision Date | 07 February 1961 |
| Citation | 10 Cal.Rptr. 867,189 Cal.App.2d 1 |
| Parties | John P. STEGGE, Plaintiff and Appellant, v. Everett WILKERSON and Herbert A. Hickey, Defendants, Everett Wilkerson, Respondent. Civ. 9983. |
| Court | California Court of Appeals Court of Appeals |
Coffield & Decker, Napa, for appellant.
Daniel K. York and Walton Pearce Young, Napa, for respondent.
Plaintiff, John P. Stegge, has appealed from an order setting aside default and vacating judgment and from an order quashing and recalling a writ of execution.
It appears from the record that on October 15, 1959, plaintiff brought an action against Everett Wilkerson and Herbert A. Hickey for the dissolution of a partnership and an accounting. It was alleged in the complaint that the three men had formed a partnership; that each was to contribute one-third of the capital; that each was to share in the profits and losses; that Stegge's contribution greatly exceeded that of the defendants; that the partnership had bills outstanding; that Stegge had sought an accounting from the defendants which they had not granted; and that the defendants refused to pay Stegge any sums due him as a result of payments by him in excess or one-third of the losses.
Summons was served on defendant, Everett Wilkerson, on October 16, 1959. Hickey was never served nor has he submitted to the jurisdiction of the court. Wilkerson did not answer or demur to the complaint and a default judgment, interlocutory in form, was entered against him on November 24, 1959, in the amount of $14,805.57.
On November 27, 1959, an order staying enforcement of the judgment was sought by Wilkerson. At 4:32 p. m. a stay order was granted by the court. However levy of execution was made.
On November 30, 1959, a motion to set aside the default was filed. The affidavit in support of the motion alleged that sometime after October 17, 1959, Wilkerson conferred with Stegge and they agreed that before the amount of money due Stegge could be determined it would be necessary to determine the amount due the creditors of the partnership; that Stegge agreed to go to Hollister and confer with the lessor of certain real property leased by the partnership; that Stegge would investigate the extent of the partnership obligations; that an appointment was made between the lessor and Stegge; that thereafter Wilkerson contacted Stegge and was informed that the trip to Hollister had not been made but that Stegge would make it shortly; that Wilkerson believed that the action could be settled by mutual agreement and he therefore neglected to consult an attorney; that without further notice to him a default was entered; and that immediately upon learning of the default Wilkerson consulted an attorney. Attached to Wilkerson's affidavit was an answer to the complaint which denied that any moneys were due to plaintiff from defendant.
At the hearing on the motion to set aside the default, a motion to quash and withdraw the writ of execution was also heard. At the hearing oral testimony was adduced which reiterated the statements in the affidavit to which reference has been made.
On December 7, 1959, the court ordered that the default judgment be vacated, and Wilkerson was given leave to file his answer. On January 19, 1960, an order was made recalling the writ of execution.
A notice of appeal dated December 10, 1959, was filed. This purports to appeal from the order vacating the judgment. A second notice of appeal dated January 18, 1960, appeals from both orders. This notice is premature as to the order quashing and recalling the writ of execution but may be considered timely under Rule 2(c) of the Rules on Appeal.
The order entered on the motion to recall the writ of execution is a special order after final judgment and is appealable. See Montgomery v. Myerstein, 195 Cal. 37, 231 P. 730, where an appeal was heard from an order denying a request for an order to quash and recall an execution; Macario v. Macario, 208 Cal. 601, 283 P. 291. The same is true of an order granting a motion to vacate a judgment. 3 Witkin, Cal.Proc., Appeal, sec. 25.
The principal issue upon this appeal...
To continue reading
Request your trial
-
Rusheen v. Cohen
...to recall and quash the writ of execution (see Brown, supra, 94 Cal.App.4th at p. 50, 113 Cal.Rptr.2d 891; Stegge v. Wilkerson (1961) 189 Cal.App.2d 1, 5, 10 Cal.Rptr. 867; Colby v. Colby (1954) 127 Cal.App.2d 602, 605, 274 P.2d 417; Meyer v. Meyer (1952) 115 Cal.App.2d 48, 49, 251 P.2d 335......
-
Lovret v. Seyfarth
...defendant (Coan v. Superior Court (1939) 14 Cal.2d 591, 95 P.2d 931); an order recalling a writ of execution (Stegge v. Wilkerson (1961) 189 Cal.App.2d 1, 4, 10 Cal.Rptr. 867); and an order recalling a writ of execution and vacating an order authorizing the issuance of the writ of execution......
-
Merritt v. J. A. Stafford Co.
...481.) In furtherance of this rule, an order quashing and recalling a writ of execution has been held appealable (Stegge v. Wilkerson, 189 Cal.App.2d 1, 4, 10 Cal.Rptr. 867); an order denying an application for an order charging a partner's interest has been held appealable (Baum v. Baum, su......
-
Bateman v. McDonald
...that orders setting aside default judgments are appealable under the statute as being orders made after judgment. Stegge v. Wilkerson, 189 Cal.App.2d 1, 10 Cal.Rptr. 867 (1961); Himmel v. City Council of Burlingame, 169 Cal.App.2d 97, 336 P.2d 996 (App.Div.1959). A Minnesota case, Peterson ......