Davis v. Taliaferro

SULLIVAN, J.

Appellant E. A. Taliaferro has taken two appeals on separate records from orders made in an unlawful detainer action. In Civil No. 20554, he has appealed from an order vacating an entry of default. In Civil No. 20660, he has appealed from an order granting a motion to strike a cross-complaint.

Following are the pertinent procedural events: On January 31, 1961, respondent Dorothy Davis filed a complaint in unlawful detainer against appellant. On

March 23, 1961,

appellant filed an answer thereto. At the same time,

1

appellant filed a "Cross-Complaint For Conspiracy and Motion to Set Aside Sheriff’s Sale” in three counts. Respondent and William H. Hoogs were named cross-defendants in all three counts; Walter C. Young, Sheriff of Contra Costa County, was named as an additional cross-defendant in the second and third counts. On

March 31, 1961,

respondent filed a motion to strike the above cross-complaint, which was taken under submission on

April 21, 1961.

While such motion was still under submission, and on

September 29, 1961,

the court ordered “that the defaults of Cross-defendants Dorothy Davis and William H. Hoogs be entered herein.”

2

The minute order entered on such date further recites that “the Court . . . finds that cross-complainant is entitled to relief on the 1st cause of action of the cross-complaint and the Court

[122]

orders that the cross-complainant E. A. Taliaferro have judgment against the cross-defendants Dorothy Davis and William H. Hoogs in the sum of $15,000.00, together with costs. Cross-complainant to prepare judgment accordingly.” However, no judgment was ever signed, filed or entered.

On November 3, 1961, respondent filed her motion to set aside the default entered September 29, 1961, and on November 16, 1961, the court made its order “that the default of the cross-defendant Dorothy Davis heretofore entered is vacated and set aside. ’ ’