Hill v. Johnson

KAUFMAN, P. J.

This is an appeal by the plaintiffs, Mattie Hill, a minor, by Louis R. Hill as her guardian

ad litem,

and by Louis R. Hill, as her father, from an order granting a motion to vacate and set aside a default and default judgment against the defendant, Ardis Taylor, individually and doing business as Taylor’s Janitorial Service. The arguments on appeal are: (1) The order vacating the default was void as the court was without jurisdiction since the motion was made more than six months after the entry

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of the default and default judgment; (2) There was no extrinsic fraud on the defendant Taylor; (3) The judgment against Taylor was not void, as hy" permitting the entry of the default, the defendant confessed the material allegations of the complaint which made him liable as a joint tortfeasor.

On June 26, 1959, appellants filed their complaint seeking damages for personal injuries sustained by Mattie Hill when struck by an automobile driven by Allen Jack .Johnson, the employee of the respondent. Both defendants were personally served with process on July 3, 1959. On' August 19, 1959, an attorney filed an answer on behalf - of the defendant Johnson only. No answer was filed on behalf of the defendant Taylor.

On September 3, 1959, plaintiffs’ attorney received a letter from Johnson’s attorney, setting the date for taking the deposition of the plaintiffs and Johnson; this letter stated: ‘‘Please notify the attorney for Ardis.Taylor once you learn his identity.” Plaintiffs’ attorney thereafter informed Johnson’s attorney that to date Taylor had no attorney and that no answer had been filed on behalf of Taylor.

• On September 15,1959, appellants ’ attorney filed his motion to enter the default of Taylor. On September 22, 1959, the court entered a default judgment against Taylor. On September 21, 1960, respondent filed his motion to vacate and set aside the default and judgment, alleging that his failure to answer the complaint was due to the mistake, inadvertence and excusable neglect on the part of counsel, who was to defend him. The motion was supported by respondent’s affidavit alleging that at the time of the accident, he was fully covered for property damage and liability with Allstate Insurance Company which was obligated to furnish him with counsel and defend the action; that after he was served, he delivered the summons and complaint to Allstate; that the policy with Allstate was excess or secondary as the automobile involved in the accident was owned and driven by Johnson and covered by a Fireman’s Fund policy which listed Taylor, as an “insured”; that thereafter, he was informed that the complaint and summons had been turned over to Fireman’s Fund and that he believed his interest was being fully represented; and that at the time of the accident, Johnson was not an employee or agent of his but engaged in activities wholly unconnected with his business.