H & H Investment Co. v. T-J Construction Co.

AULT, J. pro tem.

*

Plaintiffs appeal from an order setting aside a default and default judgment quieting title to two parcels of real property as against the defendants T-J Construction Company (T-J) and Joseph Olivia (Olivia).

Plaintiffs filed their action in the Superior Court of Orange County on December 13, 1966; served summons and complaint on both T-J and Olivia outside of Orange County on December 18, 1966; agreed in writing with the attorney representing T-J and Olivia he could “have an additional thirty (30) days in which to plead”; requested and had default entered by the clerk on February 9, 1967, contrary to the agreement; thereafter treated the cause as being at issue in all dealings with the attorney representing T-J and Olivia, after the latter had served their answer and cross-complaint on February 15, 1967 (within the agreed time to plead), and filed them on February 20,1967.

Plaintiffs’ attorney concealed the clerk’s entry of default; assured counsel for the defendants during settlement negotiations there were no time problems regarding responsive pleadings; tendered a stipulated waiver of pretrial; attended and participated in pretrial and trial setting proceedings; but at no time informed either the court or opposing counsel a default had been entered.

On November 3, 1967, at a trial setting conference, the court set the ease for trial on February 20, 1968. Counsel for T-J and Olivia served notice of trial on plaintiffs’ attorney November 6, 1967. Two days later plaintiffs requested and were granted a hearing on their default. Judgment by default was ordered on December 15, 1967 and entered January 5, 1968. The judgment, prepared by plaintiffs’ attorney, recites:

“No answer or demurrer having been filed, and no appearance made within the time provided by law,

or permission

...” [Italics added.]

T-J and Olivia moved for and were granted an order setting aside the default and default judgment. The court ordered the answer and cross-complaint filed as of February 20, 1967, the date they were originally accepted by the clerk.

[61]

Plaintiffs first claim the order vacating the default and default judgment was beyond the power of the court because the motion to set aside was filed more than six months after the default was entered, citing Code of Civil Procedure, section 473. The motion was not made under that code section, but was grounded on plaintiffs’ extrinsic fraud in taking a default when they had agreed not to and in concealing that fact from defendants. Such a motion is addressed to the court’s inherent power to vacate judgments obtained by extrinsic fraud and the six months limitation contained in Code of Civil Procedure, section 473 is not applicable.