Starkweather v. Minarets Mining Co.

WILLIS, J.,

pro tem.

In this action the sole defendant, P. J. Eddy, has appealed from an order denying his motion for a continuance of the date of trial, from a judgment entered against him for damages and from an order denying his motion to vacate and set aside said judgment.

On October 5, 1933, the attorney of record for respondent filed a memorandum setting forth the matter required by rule I of the Judicial Council, regulating the business of superior courts. On the same day the judge of the calendar department set the case for trial on October 13, 1933. On

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October 6th a notice in writing addressed to “F. J. Eddy, defendant, and to his attorney, F. E. Davis”, stating that the case described by title and number was set for trial in the calendar department on October 13, 1933, at 9:30 A. M., was sent by mail to F. E. Davis at an office address in Hollywood, and proof of such service by mail was filed October 6, 1933. On October 13, 1933, the case was called for trial in the calendar department in accordance with the rules, and transferred to department 16 for trial, Judge William J. Palmer presiding. On the same date a judgment for $3,000 damages against appellant was signed and filed, reciting that the “cause came on regularly for trial on the 13th day of October, 1933, C. S„ Mauk and Wm. M. Morse, Jr., appearing as counsel for plaintiff, the said defendant having answered, and after due notice of the date of trial was served upon counsel for said defendant, the defendant failing to appear for trial”

Upon the direct attack of a judgment there is no presumption in favor of the existence of any fact essential to the jurisdiction of the court over the defendant, but in all matters of which the judgment contains a record its verity, in the absence of any contradicting evidence, will be presumed.

(Sichler

v.

Look,

93 Cal. 600 [29 Pac. 220].) Herein it was essential to jurisdiction of the trial court in proceeding with the trial in the absence of the defendant that proof must first be made to the satisfaction of the court that the defendant had had five days’ notice of such trial. (Code Civ. Proc., sec. 594.) This essential is furnished us by the record of the judgment itself, and on the face of the record it must be held that the judgment is not vulnerable to attack on appeal.