Tearney v. Riddle

California Court of Appeal Jun 8, 1944 No. Civ. 3319Published

Before: Marks

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Holding. The court held that the trial court did not abuse its discretion in granting a motion to vacate a default judgment and a prior order denying relief, as the evidence supported a finding of excusable neglect due to lack of notice.

Issues

Whether the trial court abused its discretion in vacating a default judgment and a prior order denying relief under Code of Civil Procedure section 473.
Whether the denial of a prior motion to vacate a default judgment constitutes res judicata when that order is subsequently vacated.

Disposition. affirmed

Quotations verified verbatim against the opinion

“Section 473 of the Code of Civil Procedure gives a court the same power to relieve a party from an order as it does from a judgment taken against him.”

“It is well settled in California that section 473 of the Code of Civil Procedure is remedial in its nature and should be liberally construed”

“Under the facts before us we can find no abuse of discretion on the part of the trial judge in granting the motion before us for review.”

MARKS, J.

This is an appeal from an order setting aside and vacating a prior order, the default of respondent, and a judgment against her, and ordering her answer to the third amended complaint to be filed.

This was an action for damages alleged to have been caused by the willful misconduct of Clarence F. Riddle, a minor, in the operation of his automobile. Frank N. Riddle and Mrs. Frank N. Riddle were father and mother of the minor and had signed his application for the operator’s license which was issued to him. Their alleged liability arises because of that fact. (Veh. Code, §§ 350, 351, 352.)

A third amended complaint was filed on September 25, 1942, which for the first time named Mrs. Riddle as defendant. An alias summons was issued. Service was had on Mrs. Riddle on September 29, 1942. Her present counsel had been retained to represent the minor defendant who was represented by Mr. Riddle as guardian ad litem. Mrs. Riddle gave the alias summons and third amended complaint to Mr. Riddle upon his representation that his attorneys would take care of her interests and appear for her. He

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mailed the documents to the attorneys without any instructions to appear lor Mrs. Riddle. The attorneys, not knowing they were to appear for her, made no appearance and her default was entered and a default judgment in the sum of $5,000 was taken against her.

On January 6, 1943, Mrs. Riddle being advised of these facts, filed a notice of motion to set aside and vacate the default. The motion was noticed for January 18, 1943, and was supported by the affidavit of Mrs. Riddle setting forth the foregoing facts and also by her verified answer.

On February 6, 1943, the firm of Albeck and Albeck were associated with Robert L. Beveridge as counsel for plaintiff.

The . motion was heard and denied on March 12, 1943, Albert A. Albeck appearing as counsel for plaintiff. No one appeared as counsel for Mrs. Riddle.

On or about May 3, 1943, Mrs. Riddle filed a notice of motion to vacate the order denying the former motion and to vacate and set aside her default and the default judgment against her. Supporting the motion she specified her former affidavit and verified answer, and the affidavit of John W. Holler, one of her attorneys. Besides reciting some of the facts already detailed the affidavit of Mr. Holler contained the following:

Tearney v. Riddle

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MARKS, J.

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