Wyoming Pac. Oil Co. v. Preston

• Decision Date: 07 July 1959
• Citation: 341 P.2d 732,171 Cal.App.2d 735
• Court: California Court of Appeals Court of Appeals
• Parties: WYOMING PACIFIC OIL COMPANY, a corporation, Plaintiff and Respondent, v. Edward J. PRESTON, also known as E. J. Preston; Ralph Arnold, George B. Bush, Fred Thompson, Intermountain Production Company, a corporation, et al., Defendants, Edward J. Preston, also known as E. J. Preston, Appellant. Civ. 23554.

Page 732

341 P.2d 732

171 Cal.App.2d 735

WYOMING PACIFIC OIL COMPANY, a corporation, Plaintiff and Respondent, v. Edward J. PRESTON, also known as E. J. Preston; Ralph Arnold, George B. Bush, Fred Thompson, Intermountain Production Company, a corporation, et al., Defendants, Edward J. Preston, also known as E. J. Preston, Appellant.

Civ. 23554.

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

July 7, 1959.

Rehearing Denied Aug. 3, 1959.

Hearing Denied Aug. 31, 1959.

Milo V. Olson, Los Angeles, for appellant.

Nicholas & Mack, Los Angeles, Henry C. Clausen, Richard G. Burns, San Francisco, for respondent.

FOURT, Justice.

A complaint was filed in this case on December 15, 1953. On February 3, 1955, the plaintiff's then attorney, Mr. Reither, personally served a copy of the summons and complaint on the defendant and appellant Preston. The defendant did not make an appearance within the time prescribed. An attorney, William J. Hyland III, representing the defendant, talked to the attorney for the plaintiff with reference to a demurrer to the complaint, and later advised the attorney for the plaintiff that he was not retained to represent the defendant. The default of the defendant was entered on March 16, 1955.

Later, a copy of an answer prepared by Hyland was delivered to Reiter as attorney for the plaintiff, however such answer was never filed. Hyland asked Reiter to stipulate to set aside the default. Reiter wrote to his client concerning the matter, and shortly threafter additional counsel were substituted as attorneys for the plaintiff. Hyland made no motion under Code of Civil Procedure, section 473, on behalf of the defendant within the six months' period to vacate and set aside the default.

A judgment by court after default was signed and filed on November 19, 1957. That judgment set forth in part as follows:

'The defendant Edward J. Preston having been regularly served with process, having failed to appear and answer the plaintiff's complaint filed herein, and the default of said defendant having been duly entered; and evidence having been introduced and the Court having found that said defendant, by false and fraudulent pretenses and false and fraudulent representations, obtained property from plaintiff and otherwise violated his fiduciary obligations to plaintiff as a joint venturer, and an accounting having been duly taken in open session of this Court:

'It is therefore Ordered, Adjudged and Decreed that plaintiff recover of and from said defendant Edward J. Preston the sum of Six Million One Hundred Eighty-five Thousand Dollars together with interest on said judgment as provided by law.

* * *

* * *

'Done in open Court, this 19th day of November, 1957.

'Bayard Rhone

'Judge of the Superior Court'

On March 31, 1958, there was filed a special appearance of the appellant to set aside the default and judgment upon the grounds that the judgment was void, that the court had no jurisdiction of the persons of the defendant and appellant by reason of nonservice of summons or copy of summons on the appellant. The motion last referred to was placed on calendar and was heard on April 28, 29 and 30, 1958, before Judge Emil Gumpert, who listened to the testimony of nine witnesses and to the arguments of counsel, and then determined, in effect, that the defendant's contentions were false, and stated at the end of the hearing:

'I am completely satisfied, gentlemen, that the moving party has not met the burden of proof. As I indicated yesterday, I am convinced almost to the point of demonstration that the summons was attached, and that summons was served, * * *'.

The motion was denied on April 30, 1958.

Appellant has now appealed from that order. In his brief he states, in substance, that because of the unsatisfactory testimony which was presented at the hearing before Judge Gumpert, it is most improbable that a reversal of the orders made by him could be secured. No arguments or citations of authority are presented to this Court with reference to the appeal from such order.

On May 9, 1958, there was filed by the appellant a notice of motion to vacate the default judgment and the default. It was set forth in this notice of motion that such motion would be made upon the following grounds:

1. The judgment was obtained as a result of fraud or imposition upon the court by plaintiff;

2. The judgment is void because the relief, that is, judgment for $6,185,000, exceeds the demand contained in the prayer of the complaint;

3. No accounting was had or necessary;

4. The complaint was amended in matters of substance after the default of defendant Preston was entered and, as a matter of law, the default was therefore opened, and as no copy of the complaint as changed or amended was ever served on defendant Preston, the court had no right or jurisdiction to enter a judgment thereon against defendant Preston or, in the alternative;

5. In the event the complaint was in fact so changed or amended before defendant Preston was served, then because a true copy of the complaint that was on file was never served on defendant Preston, the court never attained jurisdiction over defendant Preston;

6. The plaintiff, through its controlling stockholder and president, waived any right to any relief on the complaint because of the material alterations made on the complaint in which a judgment in effect in her favor was entered. Because of the criminale nature of said acts, as a matter of public policy, plaintiff, that is, Mrs. Kathryn Mau, president and controlling stockholder and owner of said corporation, is not entitled to any benefit therefrom;

7. The delay and negligence was not truly that of defendant Preston but of his attorney, William John Hyland III;

8. Defendant Preston has a meritorious defense and, as the law favors a trial on the merits, under the circumstances of this case the order of the trial court should be reversed with directions permitting defendant Preston to file his answer, a copy of which was tendered with his motion to vacate.

The motions were heard before Judge Kauffman on May 16, 1958. No oral testimony was introduced, but many conflicting affidavits and other evidence were presented. On June 4, 1958, each of such motions was denied. The appellant appeals from such orders and indicates in his brief that these are the orders from which he is 'basically appealing'. Appellant urges the same grounds on appeal as asserted before Judge Kauffman, heretofore set forth.

This Court must keep in mind that there are some well-settled rules which must be followed in cases such as this one, namely, (1) when conflicting evidence is presented at a hearing of a motion to set aside a judgment, the weight and sufficiency of the evidence, its construction and the inferences to be drawn therefrom are for the trier of facts (see, Gomes v. Bragg, 201 Cal. 70, 255 P. 499; Pacific Telephone and Telegraph Co. v. Fink, 141 Cal.App.2d 332, 296 P.2d 843; Goodrich v. Tulare Ice Co., 140 Cal.App.2d 224, 294 P.2d 1037; Stahler v. Seaboard Mortgage Corp., 9 Cal.App.2d 115, 48 P.2d 993; Cole v. Roebling Construction Co., 156 Cal. 443, 105 P. 255); (2) that a motion to set aside a default judgment is addressed to the sound discretion of the trial court, and this Court should not disturb the order of the trial court in the absence of a clear showing of abuse (Gomes v. Bragg, supra; Coyne v. Krempels, 36 Cal.2d 257, 223 P.2d 244; Daniels v. Pitman, 123 Cal.App.2d 345, 266 P.2d 820); (3) that relief may not be granted under section 473, Code of Civil Procedure, after the expiration of six months from the date of entry of default. The time does not run from the date of the judgment (see, Solot v. Linch, 46 Cal.2d 99, 292 P.2d 887; Monica v. Oliveira, 147 Cal.App.2d 275, 305 P.2d 169; Castagnoli v. Castagnoli, 124 Cal.App.2d 39, 268 P.2d 37; Jones v. Evarts, 114 Cal.App.2d 496, 250 P.2d 671); (4) that when the time for vacating the default has passed, any effort to vacate the default judgment is an idle act, and will be reversed on appeal (Title Insurance & Trust Co. v. King Land & Improvement Co., 162 Cal. 44, 120 P. 1066; Howard Greer Custom Originals v. Capritti, 35 Cal.2d 886, 221 P.2d 937; Macbeth v. Macbeth, 219 Cal. 47, 48, 25 P.2d 11; Monica v. Oliveira, supra, 147 Cal.App.2d 275, 305 P.2d 169; Cumberpatch v. Nolan, 125 Cal.App.2d 205, 207, 270 P.2d 540, 271 P.2d 519; City of Pacific Grove v. Hamilton, 100 Cal.App.2d 508, 511, 224 P.2d 19; Brooks v. Nelson, 95 Cal.App. 144, 272 P. 610).

Also it is true that where the moving party has made written and oral motions to vacate before two judges, the second judge is justified in denying the second motion, where no showing is made as to why such matters were not presented on the first application, assuming the matters in the second motion were known to the petitioner at the time of the making of the motion to the first judge. See, Beaumont v. Midway Provident Oil Co., 21 Cal.App. 128, 131 P. 106; Corcoran v. City of Los Angeles, 153 Cal.App.2d 852, 857, 315 P.2d 439; Muller v. Muller, 141 Cal.App.2d 722, 731, 297 P.2d 789; Code Civ.Proc., § 1008.

With particular reference to the orders made by Judge Gumpert, the appellant, as heretogore stated, has made no showing on this appeal why the orders should be reversed. It was a question of fact whether the defendant and appellant were served with the summons and complaint (Hunter v. Bryant, 98 Cal. 247, 250, 33 P. 51), and the finding by Judge Gumpert, upon ample and sufficient evidence, was against the defendant and for the plaintiff as to such matters. A reading of the record shows that Preston repeatedly contradicted himself, and Judge Gumpert could well have disbelieved defendant's testimony when he stated, in effect, that he was not properly served.

Considering next the contention of the appellant of the appeal from the orders of Judge Kauffman, appellant asserts that when the matter came on...