Monica v. Oliveira

BRAY, J.

The sole question raised by this appeal by defendants from an order denying defendants’ motion to set aside default, default interlocutory decree and decree con

[276]

firming sale, is whether the six months’ period within which section 473, Code of Civil Procedure, provides that a default may be set aside, runs from the date of entry of the default, or from the subsequent date of entry of judgment.

Record

Action in partition. Defendants were served with summons and complaint in the county of their residence, one on October 16, the other on October 27, 1953. They failed to appear and their default was entered November 12th. June 23, 1955, interlocutory decree of partition was filed. August 24th, judgment confirming sale and ordering referees to execute deed filed. November 15th (more than six months from entry of default but not from judgment confirming sale), defendants filed notice of motion to set aside the default, the interlocutory decree and the judgment. The proceeding was pursuant to section 473.

*

Time to Move

It is well settled that relief may not be granted under section 473 after the expiration of six months from the entry of the

default.

See

Solot

v.

Linch,

46 Cal.2d 99, 105 [292 P.2d 887];

Title Ins. etc. Co.

v.

King etc. Co.,

162 Cal. 44 [120 P. 1066];

Jones

v.

Evarts,

114 Cal.App.2d 496, 498 [250 P.2d 671], and cases there cited;