Woods v. Stallworth

California Court of Appeal Jan 28, 1960 No. Civ. 23618Published

Before: Shinn

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Holding. The court held that the trial court did not abuse its discretion in denying the plaintiff's motion to vacate the judgment of dismissal, as the plaintiff failed to show excusable neglect and the motion was not made within a reasonable time. Additionally, the court held that the entry of default against a defendant was properly vacated because the initial proof of service was unverified and therefore void.

Issues

Whether the trial court abused its discretion in denying a motion to vacate a judgment of dismissal based on the plaintiff's failure to appear at trial.
Whether the trial court properly vacated a default judgment where the proof of service was unverified and thus void on the face of the record.

Disposition. affirmed

Quotations verified verbatim against the opinion

“The court did not abuse its discretion in denying plaintiff’s motion to vacate the judgment.”

“The unverified statement of service filed with the return of the summons constituted no proof of service.”

“The clerk has no authority to enter the default of a defendant in the absence of valid proof of service of summons.”

SHINN, P. J.

The present action, seeking annulment of a sale of real property under a deed of trust, and other relief, was commenced July 31, 1956. One of the defendants was J. W. Armstrong. Plaintiff filed a second amended complaint December 11, 1956, and a summons was issued thereon. Defendant Citizens Escrow Company filed an answer and a cross-complaint seeking judgment for attorney’s fees for services in foreclosure proceedings, as provided for in the deed of trust. Plaintiff answered the cross-complaint with denials. Armstrong did not answer the second amended complaint. January 16, 1957, the summons on the second amended complaint was filed and with it a writing signed by Radford Cross, stating that the summons attached to the second amended complaint was served on each defendant December 13, 1956. This statement bore no verification. January 17th the clerk entered the default of Armstrong on the second amended complaint.

The action was regularly set for trial on October 9, 1957. Plaintiff had notice of the trial date and did not appear in person or by attorney. The cause was placed at the foot of calendar for assignment to a trial department to afford plaintiff and his attorney an opportunity to be present. Upon motion of Armstrong his default was vacated. On motion of all defendants the action was dismissed as to them. Judgment of dismissal with costs to the defendants was duly entered October 11, 1957. After a hearing upon its cross-complaint

[519]

Citizens Escrow Company was awarded by the judgment $250 as attorney’s fees and costs of suit. March 31, 1958, plaintiff gave notice of a motion for vacation of the judgment and the order vacating the default of Armstrong. The matter was heard upon the files and affidavits and was denied April 7th. Notice of appeal from this order was filed June 4th.

The action was dismissed as between plaintiff and the defendants pursuant to section 581, subdivision 3, Code of Civil Procedure, which provides for dismissal: “By the court, when either party fails to appear on the trial and the other party appears and asks for the dismissal, or when, after a demurrer to the complaint has been sustained, the plaintiff fails to amend it within the time allowed by the court, and the defendant moves for such dismissal.”

Woods v. Stallworth

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SHINN, P. J.

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