In Re Marriage of Harris

California Court of Appeal Oct 17, 1977 No. 40693Published

Before: Christian

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Holding. The failure to file an affidavit of mailing as required by Code of Civil Procedure section 587 is an error in the exercise of jurisdiction, but it does not render a default judgment void for lack of jurisdiction. If the defaulting party had actual notice of the proceedings, the failure to file the affidavit is not prejudicial and does not require the judgment to be set aside.

Issues

Whether the failure to file an affidavit of mailing under Code of Civil Procedure section 587 deprives the court of jurisdiction to enter a default judgment.
Whether a default judgment must be set aside if the required affidavit of mailing was not filed, despite the defendant having actual notice of the default.

Disposition. affirmed

Quotations verified verbatim against the opinion

“Accordingly, in the absence of any legislative expression, we hold that failure to comply with the affidavit requirement is an error in the exercise of jurisdiction, but does not deprive the court of jurisdiction to render judgment.”

“If wife did receive actual notice, the error in failing to file an affidavit would not be prejudicial.”

74 Cal.App.3d 98 (1977) 141 Cal. Rptr. 333 In re the Marriage of ROXIE and BERNIE E. HARRIS.

BERNIE E. HARRIS, Respondent,

ROXIE HARRIS, Appellant.

Docket No. 40693. Court of Appeals of California, First District, Division Four.

October 17, 1977. [99] COUNSEL

Alfred M. Miller and Baron L. Miller for Appellant.

Robert J. Cort for Respondent.

OPINION

CHRISTIAN, J.

Roxie Harris (wife) appeals from an order denying her motion to set aside her default and a default judgment in this marital dissolution proceeding brought by Bernie E. Harris (husband).

Husband's request for default, filed in January 1976, was accompanied by an affidavit stating that notice had been mailed to Stephen Redner, an attorney whom wife had consulted. Mr. Redner returned the documents to husband's attorney, informing him that he had not been retained by wife but that he had advised her that her default would be taken. The returned documents were then sent by husband's attorney to wife at her residence, but no affidavit was filed evidencing this second mailing.

[100] Wife contends that since husband failed to support his request to enter default with a declaration showing that a copy of the request had been mailed to wife, the resulting default judgments were invalid.

Code of Civil Procedure section 587[1] requires that an application for entry of a default (Code Civ. Proc., § 585, subds. 1, 2; § 586, subd. 3) or of a judgment (Code Civ. Proc., § 585, subd. 3) be accompanied by an affidavit showing that a copy of the application has been mailed to the defendant's attorney of record. If there is no attorney of record, the copy of the application must be mailed to the defendant at his last known address, and if no address is known, the affidavit must so state. The statute provides that no application for default judgment shall be heard, and no default entered, unless such an affidavit has been filed. It is provided, however, that the failure to receive notice will not invalidate the judgment. Civil Code section 4001 authorizes the Judicial Council to provide by rule for the practice and procedure in proceedings under the Family Law Act. Accordingly, it has been provided in rule 1206, California Rules of Court, that requirements governing civil actions generally apply to proceedings pursuant to the Family Law Act. Thus, rule 1240, California Rules of Court,[2] applies to marital causes in requiring that an address must be given in every case before a default may be taken.

In Re Marriage of Harris

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OPINION

CHRISTIAN, J.

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