Svistunoff v. Svistunoff

• Decision Date: 15 January 1952
• Citation: 108 Cal.App.2d 638,239 P.2d 650
• Court: California Court of Appeals Court of Appeals
• Parties: SVISTUNOFF v. SVISTUNOFF et ux. Civ. 14831.

Page 650

239 P.2d 650

108 Cal.App.2d 638

SVISTUNOFF v. SVISTUNOFF et ux.

Civ. 14831.

District Court of Appeal, First District, Division 1, California.

Jan. 15, 1952.

Rehearing Denied Feb. 14, 1952.

Hearing Denied March 13, 1952.

Phil F. Garvey, San Francisco, James A. Himmel, San Francisco, of counsel, for appellant.

Frank J. Baumgarten, Alexander Riaboff, San Francisco, for respondent.

BRAY, Justice.

Appeals by plaintiff (1) from an order vacating an order setting aside default and judgment, and (2) from an order again setting aside the default and judgment.

Questions Involved.

1. Is the vacated order void? 2. If so, does an appeal from it deprive the trial court of the power to set it aside or to disregard it? 3. Will a mistake of law excuse a default?

Record.

It is necessary to set forth only that portion of the record bearing on the questions presented. On March 18, 1950, the complaint and summons were served on the defendants. Ten days thereafter defendants demanded of plaintiff a bill of particulars. On April 6th, the 19th day after service of summons, plaintiff requested and obtained entry of default of both defendants and a judgment against them in the sum of $19,200. On May 26th, under the mistaken belief of defendants' attorney that the demand for the bill of particulars extended their time to appear or answer, defendants filed a notice of motion to preclude plaintiff from giving evidence on the ground that plaintiff had failed to furnish a sufficient bill of particulars as demanded. The same day, defendants also filed a notice of motion to dismiss on technical grounds. Plaintiff, in opposition to the motion to dismiss filed an affidavit setting up various matters, but in no wise informing the court of the fact that a default judgment had been entered. On the hearing of these motions, again the plaintiff was silent about the default and argued the motions on the merits. The motions to dismiss and preclude giving evidence were submitted June 19th, and denied without prejudice August 29th. September 1st defendants filed a notice of motion to set aside the default and default judgment, accompanied by affidavits, on the grounds set forth in section 473, Code of Civil Procedure. One was an affidavit of merits by defendant Michael. Another was by Attorney Riaboff to the effect that as defendants' attorney he was under the mistaken belief, based upon a mistaken interpretation of Providence Tool Co. v. Prader, 32 Cal. 634, that the filing of a demand for a bill of particulars and plaintiff's failure to give it, extended defendants' time to appear; that he acted without any intention to delay the action; that about May 16th he associated Attorney Baumgarten in the case and informed him that the time to plead had been preserved. A third affidavit was by Attorney Baumgarten to the effect that on May 15th he had been associated in the case and had been assured by Riaboff that there was time to plead; that he prepared the motion to preclude plaintiff from giving evidence; that he was lulled into security by the fact that in the opposition to this motion plaintiff's attorney did not inform the court or him of the default. Defendants' notice of motion to set aside the default was noticed for September 7th. It was not served until September 6th. There was no order shortening time. Plaintiff did not appear in opposition and on September 7th the court made its order setting aside the default and judgment. September 15th plaintiff appealed from that order. ¹ On September 30, 1950, based on affidavits then on file and particularly the affidavit of Attorney Garvey and his secretary, Helen J. Murin, showing that service of the first notice of motion to set aside the default was improper to give the court jurisdiction, the court vacated its order of September 7th. Then on October 6th, on proper notice of motion and additional affidavits, the court again set aside the default and default judgment. Plaintiff appealed from both these orders.

1. The Order of September 7th Is Void.

To begin with, it should be pointed out that a demand for a bill of particulars made under section 454, Code of Civil Procedure, does not extend the time to answer, Steineck v. Coleman, 72 Cal.App. 244, 236 P. 962; hence defendants were properly found to be in default.

Notice of the motion to set aside the default, in the absence of an order shortening time, should have been given at least five days before the time appointed for the hearing. Code Civ.Proc. § 1005; Brownell v. Superior Court, 157 Cal. 703, 109 P. 91. A sufficient notice of the hearing not having been given, the order was void. Irons v. Superior Court, 10 Cal.App.2d 523, 52 P.2d 553; see also Peters v. Anderson, 113 Cal.App. 158, 298 P. 76.

2. Effect of the Appeal From the First Order.

Plaintiff contends that the appeal from the first order deprived the trial court of jurisdiction to act in any respect concerning that order. While this is the general rule, in this case, since the order was void for lack of proper notice and jurisdiction, a different situation exists from the usual case of mere error. The court could have either disregarded it entirely and considered the new motion to set aside the default, or could have set it aside of its own motion, or, as here, on motion of defendant. 'It is said in Corpus Juris, vol. 42, p. 558: 'An order made by a court or judge wholly without jurisdiction is void and of no force or effect. * * * A void order * * * remains without effect as completely as if never entered.' (Italics ours.) The cases relied upon by appellant to sustain the second point involve situations where the first motion for a new trial had been properly made and not where the first order was a nullity. Under these circumstances the second motion for a new trial, based upon the written notice of intention, must be deemed to have been an original motion.' Peters v. Anderson, supra, 113 Cal.App. 158, at page 160, 298 P. at page 77; see also 31 Am.Jur. 91. 'However, a court may set aside a void order at any time. An appeal will not prevent the court from at any time lopping off what has been termed a dead limb on the judicial tree--a void order.' Macmillan Petroleum Corp. v. Griffin, 99 Cal.App.2d 523, 533, 222 P.2d 69, 75. The statement in Irons v. Superior Court, supra, 10 Cal.App.2d 523, at page 525, 52 P.2d at page 554, concerning the failure to give notice on a motion for new trial answers that question and applies to the situation here. 'It is undoubtedly true that, when the trial court regularly makes a valid order granting or denying a motion for new trial, its jurisdiction is exhausted in that regard, and such an order may not subsequently be modified or vacated by that court. Compton v. Northwest Engineering Co., 116 Cal.App. 523, 2 P.2d 1014, 1015; Lang v. Superior Court, 71 Cal. 491, 12 P. 306, 416; 20 Cal.Jur. 204, § 134. But the inadvertent making of an invalid order granting or denying a motion for new trial when the court lacks jurisdiction of the parties is a recognized exception to the general rule previously stated.' 'An appeal does not deprive the trial court of jurisdiction to vacate a void order. If it is void upon its face, it may be set aside at any time. If it is void in fact for want of jurisdiction, but not void upon its face, a separate action of attack is the preferable procedure, Isert v. Rieks [Riecks] 195 Cal. 569, 234 P. 371, but if there is an absence of jurisdiction and this becomes certain from an inspection of the entire record, the trial court is not precluded from taking proper action though an appeal is pending.' Fallon v. Superior Court, 33 Cal.App.2d 48, 51, 90 P.2d 858, 859. In our case, that the court had no jurisdiction to make the order appears on the face of the record, as it shows that the notice required by law was not given.

Cases cited by plaintiff like Takahashi v. Fish and Game Com., 30 Cal.2d 719, 185 P.2d 805; Swan v. Riverbank Canning Co., 81 Cal.App.2d 555, 184 P.2d 686; and Howard v. Howard, 70 Cal.App.2d 731, 161 P.2d 681, upholding the general rule that an appeal deprives the trial court of the power to set aside the order reason that none of them in point for the reason that none of them deal with a void order, which as herein pointed out raises an exception to that rule.

3. No Abuse of Discretion in Setting Aside Default.

It is only where the trial court has abused its discretion in setting aside a default that this court can reverse its action. Plaintiff contends that there was such an abuse of discretion, primarily, because, he contends, a mistake of law cannot excuse a default. It appears from defendants' affidavits, and the trial court presumably so found, that the failure to appear in the case was due to the mistake of defendants' attorney in misreading Providence Tool Co. v. Prader, supra, 32 Cal. 634, and believing that the demand for a bill of particulars extended defendants' time to appear. The cases cited by plaintiff do not support his contention. The first, Porter v. Anderson, 14 Cal.App. 716, 113 P. 345, dealt with a situation where, after the case was tried, submitted, and an opinion of the court finding in favor of defendants filed, plaintiff moved to reopen the case, to be permitted to file an amended complaint, and to have the entire case retried, upon the ground of surprise on the part of himself and his attorney, the surprise being that they had not expected the court's decision to be what it was, namely, that the complaint did not state a cause of action. The trial court denied the motion. The reviewing court held that the trial court did not abuse its discretion, pointing out among other things that the attorney who claimed to have been surprised by the court's action at the end of the case 'was himself at least in grave doubt, from the time that the demurrers were overruled, whether his complaint stated a cause of action, and that entertaining such doubt, it was his...