Taliaferro v. Bekin Realty Co.

BRAY, P. J.

Plaintiff appeals from an order denying his motion to vacate a judgment.

Question Presented

Was the judgment void, or procured by fraud

1

Record

(The record is voluminous. However, only such of it as bears upon the issue here will be stated.)

July 16, 1954, complaint filed.

August 16, 1954, defendants’ demurrer to the complaint sustained with 10 days to amend. (Plaintiff did not appear at the hearing of the demurrer.)

January 12, 1955, amended complaint filed.

February 2, notice of sustaining demurrer to original eomjfiaint filed.

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February 4, second amended complaint filed.

February 16, 1956, default and judgment in favor of defendants filed based upon plaintiff’s failure to amend complaint. This judgment was not appealed.

March 24, 1958, plaintiff moved to set aside the judgment on the ground that it was void and procured by fraud.

March 27, order denying motion to vacate.

Was the Judgment Void? No.

As the notice of sustaining demurrer was not served until February 1, 1955, plaintiff had 10 days thereafter to file amended complaint. (See Code Civ. Proc., § 472b.)

At the time of the entry of the default and judgment on March 27, 1958, there were on file two amended complaints, but neither one of them had been served upon defendants. Sections 432 and 472, Code of Civil Procedure, require service of amended pleadings on the adverse party. Thus plaintiff was in default and the court’s judgment was not void.

Even assuming that the second amended complaint had been served and plaintiff’s default should not have been entered, the judgment would not have been void but merely voidable, and plaintiff’s only remedies would have been appeal or a motion within six months of entry of judgment under section 473, Code of Civil Procedure, for inadvertence, excusable neglect, etc. See