Baker v. Anderson

Opinion

STEPHENS, J.

The historical background for the instant controversy involves a different proceeding and though plaintiff, Baker, refers to it at length, reference thereto is unnecessary.

On June 16 and 18, 1979, defendants Anderson were served with a summons and complaint. On June 27, 1979, both defendants were served by mail with a first amended complaint, said complaint having been filed on June 29. Defendants took the papers to an attorney, Goldman, and instructed him to enter defenses. No action was taken by Goldman and defaults were taken on August 1, 1979; motion for default having been filed on July 31, 1979.

Goldman was contacted and he said that he would take care of the matter, but on August 10 Goldman informed defendants that any effort to set aside the defaults would be unavailing; that he would talk to defendants on his return from vacation, which he then took. Due to heart surgery, Mr. Anderson was unable to attend the prove-up hearing on August 20 but obtained the assurance that Goldman’s associate would appear. No one appeared for defendants and default judgment was entered.

On November 2, 1979, a notice of motion to set aside default and judgment by default was served by mail on plaintiff. The motion was

[1002]

filed November 9, 1979, and after hearing thereon, on November 30, 1979, the motion was granted on December 3, 1979. The ruling of the court was: “The Court finds the default judgment entered on 9/24/79 in Book 300035, while valid on its face, was void as to both moving parties for the Court did not have jurisdiction of either of them.... [If] Where defendants had not appeared in this action—though validly served, and where time to plead had not expired—any amendment to the complaint had to be served in the same manner as service of the original complaint, i.e., personal service or appropriate constructive service; not mere service by mail as here.” The court also stated that the amendments were not matters of form but of substance.

Section 472 of the Code of Civil Procedure provides: “Any pleading may be amended once by the party of course, and without costs, at any time before the answer or demurrer is filed, or entered in the docket, or after demurrer and before the trial of the issue of law thereon, by filing the same as amended and serving a copy on the adverse party, and the time in which the adverse party must respond thereto shall be computed from the date of notice of such amendment.”