Davis v. Davis

Defendant husband was served with a copy of summons and complaint in a divorce action; after a hearing on the order to show cause (February 13, 1959) counsel orally agreed that defendant need not plead to the complaint until 10 days after written notice to his counsel. On February 18, 1959, defendant's counsel prepared and submitted to plaintiff's attorney a letter confirming their oral understanding that pending their "working out of the details of a settlement" he would have 10 days in which to plead and "no default will be taken without first giving written notice" to him. This letter was signed by plaintiff's counsel February 19, 1959. Thereafter various conversations occurred between counsel in an effort to settle the property rights of the parties, particularly those relating to certain realty held in joint tenancy which plaintiff claimed as community property. Pending negotiations, default was entered on April 13, 1959; on December 16, 1959, plaintiff obtained a default decree of divorce against defendant which judgment was entered December 23, 1959.

On February 23, 1960, defendant filed a notice of motion to set aside default and default judgment under section 473, Code of Civil Procedure. At the hearing on the motion, certain facts having come to his attention, defendant's counsel requested and the lower court granted permission to file an amended motion. He did so setting up therein the additional ground of "extrinsic fraud," alleging that the failure of plaintiff's counsel to comply with the written agreement of February 19, 1959, resulting in an interlocutory decree without notice to defendant, deprived him of his day in court and right to be heard. The main issue between plaintiff and defendant was division of the joint tenancy real property; in the default decree plaintiff was awarded the same as community property. Plaintiff appeals from the order granting the motion to vacate and set aside default and default judgment.

[1-3] The rule that an order granting relief from default generally will be upheld is predicated on two principles — the discretion of the lower court will not be disturbed except for manifest abuse; and the remedial power to grant relief should be freely exercised to carry out the policy in favor of trial *Page 791 on the merits (Burbank v. Continental Life Ins. Co.,2 Cal.App.2d 664 [38 P.2d 451]; Kalson v. Percival, 217 Cal. 568 [20 P.2d 330]; Waybright v. Anderson, 200 Cal. 374 [253 P. 148]; Stub v. Harrison, 35 Cal.App.2d 685 [96 P.2d 979]); and a reviewing court is much more disposed to affirm an order when the result is to compel a trial upon the merits than it is when the judgment by default is allowed to stand. (O'Brien v.Leach, 139 Cal. 220 [72 P. 1004, 96 Am.St.Rep. 105]; Berri v.Rogero, 168 Cal. 736 [145 P. 95].)

The record discloses that originally defendant relied in his notice of motion to vacate upon "mistake, inadvertence, surprise or excusable neglect" under section 473 of the Code of Civil Procedure. Later, defendant amended his motion and alleged, in addition to the grounds specified in section 473, "extrinsic fraud," in that the default judgment was taken without notice to defendant, who first became aware of its entry when served with a writ of possession to remove him from the family home which had been awarded to plaintiff under the judgment; defendant and his counsel at all times relied upon the written agreement of February 19, 1959; negotiations for settlement of the property rights of the parties were pending; counsel for defendant was advised by plaintiff's counsel at the hearing on the original motion that he had written a letter to him dated March 6, 1959, notifying him plaintiff intended to take a default and that the same was addressed and sent to defendant's counsel at 111 East Vernon Avenue, Los Angeles (his true address was 1111 East Vernon Avenue, Los Angeles); the purported letter to defendant's counsel, having been misdirected by plaintiff's counsel, was never received by the former; and at no time before judgment was entered was either defendant or his counsel notified that plaintiff intended to take a default.