Cromwell v. Heward

California Court of Appeal Mar 25, 1959 No. Civ. 18084Published

Before: Draper

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Holding. A party who successfully invokes equity to set aside a default judgment in order to obtain a trial on the merits waives the right to assert statutory dismissal bars, such as sections 581a and 583, against the original plaintiff.

Issues

Whether a trial court has jurisdiction to proceed to trial on the merits after vacating a default judgment in an equitable action.
Whether a defendant who obtains equitable relief from a default judgment waives the right to assert statutory time bars for service and trial.

Disposition. affirmed

Quotations verified verbatim against the opinion

“Cromwell, in seeking the aid of equity to afford a trial upon the merits, has offered to waive his right to assert the bar of sections 581a and 583 to Howard’s presentation of the merits of his ease”

“The very purposes of equitable intervention would be frustrated if a decree expressly designed to permit trial upon the merits were construed to prohibit such a trial.”

DRAPER, J.

This is an independent action in equity to set aside a default judgment taken against plaintiff. Plaintiff prevailed, but appeals from that portion of the decree which directed that the earlier action proceed to trial.

The earlier action was filed by Heward, as plaintiff, November 27,1951. Summons was issued on the same date. Affidavit of one Byrnes recited service upon Cromwell December 5, 1951. This affidavit was filed and on July 8, 1954, default judgment was entered in Howard’s favor for $9,024.32. The trial court found that the affidavit of service upon Cromwell was false and fraudulent, and that he had no knowledge of the entry of any judgment against him until July 1, 1955. The trial court also found that Heward was guilty of no fraud, that he had no contact with and gave no instructions to the process server. Upon finding that Cromwell had “a sufficiently meritorious defense to entitle (him) to a trial of the issues ... in a proper adversary proceeding,” the court ordered the default judgment set aside, and directed that the earlier action “should be permitted to proceed to trial upon

[90]

the issues . . . upon . . . Cromwell filing his answer thereto, without further service. ’ ’ There is no appeal from the order vacating the default judgment, hut Cromwell appeals from that portion which requires trial of the original action.

Cromwell contends that the trial court has no jurisdiction to proceed in the original action, and must dismiss it because summons was not served within three years (Code Civ. Proc., § 581a) nor the action brought to trial within five years (Code Civ. Proc., § 583).

One who seeks the intervention of equity to set aside a judgment must allege facts showing that he “has a sufficiently meritorious claim to entitle him to a trial of the issue at a proper adversary proceeding.”

(Olivera

Grace,

19 Cal.2d 570, 579 [122 P.2d 564, 140 A.L.R 1328].) “There must be reasonable certainty that plaintiff would have emerged in a more advantageous position. ’ ’

Cromwell v. Heward

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DRAPER, J.

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