Remainders, Inc. v. Superior Court

NOURSE, J. pro tem.

*

Petitioner seeks a writ of mandate to compel the respondent court to vacate its order setting aside a default of real parties in interest entered by its clerk.

The order made by the court is not appealable and hence mandamus is a proper remedy if the court acted in excess of its jurisdiction or abused its discretion in entering that order.

The relevant facts are: Petitioner commenced an action against real parties in interest and others, and service of process was made upon real parties in interest. Petitioner extended the time for real parties in interest to plead to December 21, 1960. Real parties in interest did not appear within that time and at the earliest possible moment, on December 22d, petitioner filed notice of request for entry of default. On the same day the clerk entered the default and on the same day received and filed real parties in interest’s answer to the complaint. On February 28, 1961, petitioner filed notice of motion to strike the answer and upon the hearing of the motion (real parties did not appear in opposition thereto), the respondent court denied that motion and of its own motion set aside the default entered by the clerk.

An answer filed after a default has been

properly

entered is a nullity.

(Christerson

v.

French,

180 Cal. 523, 525 [182 P. 27] ;

Title Insurance etc. Co.

v.

King etc. Co.,

162 Cal. 44, 46 [120 P. 1066].)

While a defendant has the right to be relieved of his default if he applies for such relief upon the grounds set forth in section 473, Code of Civil Procedure, the court cannot of its own motion grant a defendant relief from his default for failure to answer a complaint, as its jurisdiction so to do is dependent upon an application for such relief being made by the defendant and a showing made of mistake, inadvertence, surprise or excusable neglect.

(McDonald

v.

Severy,