Cumberpatch v. Nolan

BRAY, J.

Plaintiffs appeal from judgment in their favor in the sum of $63.62.

Questions Presented

1. Effect of order setting aside default judgment against defendant Ray E. Nolan without setting aside his default.

2. Effect of the judgment against Emily M. Nolan.

Record

Defendant Ray was served with summons November 16, 1951. On November 28th he obtained an order extending to December 10th his time to appear. December 27th his default was taken and judgment entered against him for, among other matters, damagés in the sum of $1,500. January 4, 1952, he filed notice of motion stating he would move “to vacate and set aside the

default judgment

...” (Emphasis added.) Likewise he filed a motion in which he moved the court “to vacate and set aside

the default judgment

. . .” (Emphasis added.) January 15th “Order Setting Aside and Vacating

Default

Judgment” (emphasis added) was entered, in which order the default judgment only was vacated. Defendant Ray’s answer accompanying the application was ordered filed. (Defendant Emily was included in this answer.) The complaint was one for declaratory relief, involving a written agreement in which plaintiffs purchased and defendant Ray sold a certain parcel of real property for $5,250. It alleged the payment by plaintiffs into escrow of that sum and the refusal of defendants to deliver deed to plaintiffs except subject to certain restrictions which were not mentioned in the purchase agreement and which defendants had placed of record subsequently thereto. Plaintiffs asked that the rights of the parties be determined, particularly that defendants be required to convey free of restrictions, and that plaintiffs be awarded damages of $800 expended for architect’s fees and $7,500 general damages. Defendants’ answer admitted the refusal to deliver the deed without restrictions and alleged an oral understanding between the parties prior to the

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