F. E. Young Co. v. Fernstrom

HAINES, P. J.

On November 24, 1933, plaintiff and appellant filed an action against defendant and respondent, in which a money judgment was sought. A writ of attachment against property of the defendant issued. A return of service of the summons was made by the constable of the township, purporting to show such service made on November 25, 1933. No appearance being made, judgment in the plaintiff’s favor by default was entered on December 15, 1933, for $273.31. Apparently the attempted attachment was unfruitful, for executions, from time to time issued, were returned unsatisfied. On February 28, 1938, defendant and respondent gave notice of a motion to vacate the judgment on the ground that he had not, in fact, been served with summons and was in Arizona on the date of its purported service upon him. This motion was on March 9, 1938, made in the municipal court, as the successor of the justice court, and, after examining witnesses, the municipal court entered an order reciting that the constable had made an erroneous return, due to a mistake in identity, thinking that he had served the defendant when he had not, in consequence of which the court proceeded to quash the service and set aside the judgment; and on application to it to set aside the order as beyond its power of granting relief, it refused to do so. Thereupon the present appeal from the orders quashing the service and vacating the judgment was taken.

Prior to 1933 the power of justice courts to relieve from judgments taken against a party, on the general ground of inadvertence, surprise or excusable neglect was regulated by section 859, Code of Civil Procedure, which required the application for such relief to be made within ten days after notice of the entry of judgment. It was held that the cognate provisions of section 473, Code of Civil Procedure, were in

*Supp. 765

applicable to justice courts.

(Arbogast

v.

Superior Court,

32 Cal. App. 372, 378 [162 Pac. 909].) In 1919, section 900a, Code of Civil Procedure, was enacted providing with respect to justices of the peace that:

“Said justice shall have power to set aside any void judgment upon motion of either party to the action after notice to the adverse party, and thereupon the action shall be treated as if no judgment had been entered.”

Our attention has not been called to any decision adjudicating within what limit of time such action might in justice courts be taken under that section.