Ray Kizer Constr. Co. v. Young

FRIEDMAN, J.

Plaintiffs appeal from an order setting aside a default and default judgment. The action, filed in the Superior Court of Siskiyou County, sought recovery of $37,-614.33 for money lent. Defendants were served with process on January 25, 1966. Plaintiffs’ counsel then received successive communications from several attorneys, each of whom stated at first that he would represent defendants, then that his representation had ceased. One of these attorneys requested withholding of proceedings for 30 days while defendants secured other counsel. Plaintiffs’ attorneys honored this request. No appearance was filed. On August 5, 1966, having seen defendants’ advertisement offering their heavy construction equipment for sale, plaintiffs had a default and default judgment entered. They then levied execution on certain of the equipment.

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On August 12, 1966, after execution had issued, defendants secured counsel, who purportedly filed a demurrer to the complaint and thereafter filed a notice of motion to vacate the default and judgment. The notice of motion failed to specify any ground for the motion. Before presenting the motion, however, defendants filed a supporting memorandum of points and authorities indicating that they were relying upon Code of Civil Procedure section 473. The demurrer presented by defendants alleged the pendency in Plumas County of another action between the same parties for the same cause.

In support of the motion defendants filed two declarations. In one of these declarations defendant Vernon Young set forth a purported explanation for his failure to make an appearance in the action: “ I further certify that on or about February 24, 1966, the firm of Tebbe, Correia & Kleaver, who had been my attorneys withdrew as may

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said attorneys. That thereafter I employed Randolph Presleigh, an attorney at Law of Redding, California, and delivered to him my files. That on or about the 12th day of August, 1966, I turned my files over to Ross L. Bigler, Attorney at Law, to do what might be necessary. That I was unaware that a Judgment had been entered.”

The other declaration was by defendants’ present counsel, who stated: “I am the attorney for the above-named defendants; that by reasons unknown to your Affiant, Defendant's attorneys, Tebbe, Correia & Kleaver withdrew as said attorneys and substituted in their place and stead Albert Vernon Young, in propria persona. That on or about the 12th day of August, your Affiant was substituted as attorney for said Defendants and filed therein a Demurrer to the Complaint, based upon the issue that there is another action pending in the County of Plumas, a copy of said Demurrer being attached hereto as Exhibit ‘A.’