Olivia v. Suglio

DEVINE, J. pro tem.

*

This is an appeal from a judgment of dismissal which was rendered against plaintiffs when they failed to appear at the time set for trial, and from an' order denying their motion to vacate the judgment of dismissal.

The appeal from the judgment having been filed some 11 months after the rendition of the judgment, it must be dismissed.

The motion to vacate the judgment was made almost 11 months after judgment was rendered, and, therefore, so far as the motion was based on the grounds of surprise, inadvertence, or excusable neglect, it was not timely made. (Code Civ. Proc., §473.)

The motion was also based on the contention that the judgment was void because notice of time of trial was not given to plaintiffs’ counsel, who alleges that after filing of a memorandum to set, he expected to be informed by the county clerk of the trial date, but was not so informed, nor was he served with notice by counsel for defendants. These facts, together with a long history of the cause, are set forth in an affidavit of counsel which accompanied the notice of motion to vacate the judgment; but the judgment roll itself does not contain any affirmative showing of lack of notice of time of trial. The judgment does not state whether or not the proof of notice of time of trial was or was not made, which proof is a requisite for dismissal by the terms of section 594, subdivision 1, of the Code of Civil Procedure. That section does not describe the kind of proof necessary, nor require that the proof be recited in the judgment. Where it does not appear affirmatively that a jurisdictional defect was present, the absence of a recital that jurisdictional requisites were met does not produce a judgment void on its face.

(Hahn

v.

Kelly,

34 Cal. 391 [94 Am.Dec. 742] ;

Fletcher

v.

[9]

Superior Court,

79 Cal.App. 468 [250 P. 195].) To the contrary, all presumptions favor the judgment.