Beall v. Munson

SALSMAN, J.

The plaintiff appeals from an order setting aside a default judgment; the defendant appeals from the judgment.

On July 13, 1959, plaintiff filed a complaint for damages charging defendant with malpractice. A copy of the summons and complaint was served upon defendant personally on July 21, 1959. Defendant made no appearance, and his default was taken October 9, 1959, more than 11 weeks after service of the summons and complaint. On August 29, 1960, more than 10 months after the entry of defendant’s default, plaintiff presented her evidence to the court and on that day judgment was entered in her behalf in the sum of $12,500. On September 14, 1960, defendant moved to set aside the default judgment on the ground of his “mistake, inadvertance, [sic] surprise and excusable neglect.” Defendant filed an affidavit in support of this motion. Later, on October 17, 1960, defendant filed a second motion “both in law and in equity” seeking to set aside the default judgment. The basis for defendant’s second motion was that the default judgment was taken against him through his excusable neglect and ‘ extrinsic mistake of said defendant due to his ignorance and inadvertence”

[398]

as previously set forth in defendant’s affidavit in support of his first motion to set aside the default judgment.

In his affidavit, defendant admitted the service upon him of the summons and complaint but alleged he had “mistakenly assumed that he would receive some form of notice that there was to be a hearing on the merits of the action, at which time he intended to retain counsel and appear in defense of the charges made against him,” and further that defendant was “not familar [sic] with the processes of law and did not know or realize that the plaintiff would and could proceed to obtain judgment against him without further notice.”

On October 25, 1960, the court, by its minute order, granted defendant’s motion to set aside the judgment, and two days later signed a formal order setting aside the judgment on the ground of “mistake or excusable neglect” of the defendant.

We consider first plaintiff’s appeal from the order setting aside the default judgment. Defendant’s first motion was made under Code of Civil Procedure section 473 but relief under this provision of the law was not available to him because more than six months had elapsed from the date of the entry of defendant’s default to the time of his motion to set aside the default judgment.