Hudson v. Hutchason

DAVID, J.

On May 13, 1958, judgment was rendered against defendants Hutchason and Daniele in a personal injury action, as joint tort feasors. The cause of action upon which this judgment was based accrued in April, 1957. By definition, a cause of action “accrues” when suit may be brought thereon. Hutchasons paid the judgment in full, and proceeding under Code of Civil Procedure, sections 875-880 (Cal. Stats. 1957 ch. 1700) secured a judgment for contribution against Daniele as joint tort feasor, entered on July 8, 1958, unopposed at the hearing. Upon January 14, 1959, Daniele made a motion to vacate the judgment of contribution.

The motion was made on the ground of mistake and excusable neglect of defendant Daniele and his attorney; and the meritorious defense asserted, was that the code provisions for contribution were not applicable, since Code of Civil Procedure, section 880, provides “This title shall become effective as to causes of action accruing on or after January 1, 1958.”

1. The record shows that the “Notice of Motion to Enter Judgment against Joint Tort Feasor” was duly served by mail on all necessary parties including respondent. It further shows that there was “No appearance for defendant Daniele” at the hearing of the motion. There is no evidence as to why Daniele’s attorney did not then appear and no evidence except hearsay why Daniele was not there. These facts should have been shown by competent evidence at the hearing of the motion to vacate the judgment of contribution. Lacking such evidence, there was no showing that the order was entered by surprise, inadvertence or excusable neglect.

(Colvin

v.

Sibley

(1953), 117 Cal.App.2d 144 [255 P.2d 16];

Gray

v.

Sabin

(1890), 87 Cal. 211 [25 P. 422] ;

Smith

v.

Tunstead

(1880), 56 Cal. 175;

Romero

v.

Snyder

(1914), 167 Cal. 216 [138 P. 1002] ;