Kirkwood v. Superior Court

FRIEDMAN, J.

Petitioners are defendants in a personal injury action. The plaintiffs, an injured child and his parents, appear here as real parties in interest. In the trial court petitioners moved to vacate a default and default judgment against them under Code of Civil Procedure section 473. The court granted their motion conditionally, its order declaring: “Motion Granted, on condition that defendant posts a bond in the amount of $50,000.00.” Petitioners then sought modification of the order, pointing to the existence of insurance coverage of $25 000 per person and $50,000 per accident. The court denied modification. Petitioners now seek a writ of mandate relieving them of the condition or the order.

Real parties in interest caused the entry of petitioners’ default on June 9, 1966, and on June 20, 1966, secured a default judgment against them for $57,200. Declarations in support of the petition state that petitioners were served with process on May 23, 1966; that they did not deliver the litigation papers to their insurance carrier’s representative until

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June 8, 1966; that the latter delivered the papers to the carrier’s defense counsel on the same day; that counsel filed an answer on June 15, 1966, without being aware that the plaintiffs’ attorney had caused the defendants’ default to he entered.

Real parties in interest urge the existence of an adequate remedy by appeal, hence that relief by mandate should he denied. A conditional order setting aside a default judgment is appealable if it is self-executing, but not appeal-able if it is not self-executing, that is, if it contemplates or requires a second order in order to accomplish the vacation of the judgment.

(Yarbrough

v.

Yarbrough,

144 Cal.App.2d 610, 614 [301 P.2d 426];

Reeves

v.

Hutson,

144 Cal.App.2d 445, 450-451 [301 P.2d 264].)

The present order is not self-executing. It is conditioned upon the posting of “a bond in the amount of $50,000.00.” It fails to designate any condition, occurrence or failure which will make the bondsman’s obligation operative. If the court intended the bond obligor to stand surety for a judgment, it did not say so. The order is so vague that petitioners could not comply without guessing at the court’s desire and returning to the court for a further judicial act of approval, confirmation or rejection. Perhaps the order did not contemplate a further judicial act; it certainly required it. Not being self-executing, the order is not appealable.