Berilla v. Pope

McCOMB, J.

From an order denying a motion of defendant Sampsell, (1) to vacate and set aside a judgment theretofore entered against him, and (2) for permission to file an answer to the complaint, said defendant appeals.

Facts: The default of defendant Sampsell was entered October 2,1942, of which fact he and his counsel were apprised on September 17, 1943. On July 5, 1945, a default judgment was entered against him. He took no action to set aside the default until August 8, 1947, when he filed a notice of motion for dismissal of the action because it had not been brought to trial within five years. This motion was denied August 14, 1947. On February 21, 1948, a motion was made to set aside the default judgment, which was denied March 2, 1948. On September 16, 1948, he filed the present motion which was denied October 29,1948. Defendant was absent from the state for a considerable period of time after his default had been entered.

[744]

Question :

Bid the period that defendant was absent from the state toll the six-month period provided in section 473, Code of Civil Procedure, limiting the time in which a court may grant relief from an order or judgment taken against a party through his mistake, inadvertence, surprise or excusable neglect?

This question must be answered in the negative. It is obvious that it would be unjust to permit a defendant who had been duly served with process in this state to prevent plaintiff from taking further proceedings against him by simply absenting himself from the jurisdiction of the court. Section 473 Code of Civil Procedure, means exactly what it says: that an application for relief pursuant to its provisions “must be made within a reasonable time, in no case exceeding six months after such judgment, order” or other proceeding has been taken.

(Cf., Smith

v.

Jones,

174 Cal.513, 516 [163 P. 890] ;

Barnett

v.

Reynolds,

124 Cal.App. 750, 751 [13 P.2d 514.].)