Pavlovich v. Watts

California Court of Appeal Jul 17, 1941 No. Civ. 6552Published

Before: Pullen, Tuttle, Thompson

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Holding. The court held that the failure to enter a default judgment within three years of service of summons under section 581a of the Code of Civil Procedure does not render a judgment void for lack of jurisdiction. Furthermore, the court affirmed the validity of the execution sale, noting that non-manual property does not require physical seizure and that mere price inadequacy is insufficient to invalidate a sale.

Issues

Whether a default judgment entered more than three years after service of summons is void for lack of jurisdiction under section 581a of the Code of Civil Procedure.
Whether an execution sale of non-manual property is invalid if the sheriff fails to take physical possession or expose the property to view.
Whether gross inadequacy of price is sufficient grounds to set aside an otherwise legal execution sale.

Disposition. affirmed

Quotations verified verbatim against the opinion

“It has already been held, however, that this provision is not a jurisdictional limitation upon the power of the court.”

“While a judgment so entered may not be void for lack of jurisdiction the court’s error in failing to perform that duty is one which may be corrected on appeal from the judgment if taken within the statutory time.”

“Mere inadequacy of price, however gross, is not of itself a sufficient ground for setting aside a sale legally made.”

PULLEN, P. J.

From orders denying motions to set aside a sale under execution, to set aside the judgment and to dismiss the action, this appeal is taken.

In 1935 an action upon a promissory note was commenced by the predecessor in interest of plaintiff against Oswald Watts, the defendant and appellant herein.

Defendant was promptly served with a copy of the summons and complaint, and the original summons with return of service immediately filed with the clerk of the court. No answer or other appearance was ever made by the defendant. In 1939, approximately four and one-half years after the summons had been served and returned, plaintiff filed with the clerk a request for the entry of the default of the defendant, which was entered, followed on the same day by a default judgment. No appeal was ever taken from this judgment nor motion for relief under section 473 of the Code of Civil Procedure.

Thereafter in May, 1940, plaintiff caused an execution on the judgment to issue, and levied the same upon a claim for money evidenced by five promissory notes payable to Oswald Watts of a face value of approximately $21,000. On June 7, 1940, the sheriff sold the right, title and interest of appellant Watts in this personal property to respondent for $250.

Upon this sale by the sheriff, appellant made the several motions, the details of which are the basis of this appeal.

The first and principal point urged by appellant is that the default judgment entered by the court was void and in excess of the jurisdiction of the court, under the provisions of the last paragraph of section 581a of the Code of Civil Procedure, and that it was mandatory upon the court to have granted the several motions of appellant.

The particular portions of section 581a upon which appellant relies provides that ‘ ‘ all actions, heretofore or hereafter commenced, must be dismissed by the court in which the same may be pending, on its own motion, or on the motion of

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any party interested therein, if summons has been served, and no answer has been filed, if plaintiff fails, or has failed, to have judgment entered within three years after service of summons. ’ ’

Pavlovich v. Watts

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PULLEN, P. J.

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