Hammond Lumber Co. v. Bloodgood

[563]

MARKS, J.

On April 16, 1927, appellant filed its action against defendants, seeking to foreclose a materialman’s lien. Respondent was named as contractor and personal judgment was sought against him. The summons is not in the record, but respondent admits personal service in the county of Riverside. On October 21, 1927, the default of respondent was entered, and on December 3, 1927, a default judgment was rendered and entered against him. No judgment was taken foreclosing the lien. On December 8, 1927, respondent served and filed his notice of motion to set aside the judgment, on the grounds of mistake, inadvertence and excusable neglect. Attached to the notice of motion were respondent’s affidavit and his verified answer. At the time the motion was argued counsel for both appellant and respondent were present and submitted additional affidavits to the trial court. On January 19, 1928, the court below granted respondent’s motion, using the following language in so doing: “It is ordered that the motion of defendant, D. W. Lewis, and the proceedings subsequent be and the same is hereby granted and such default is hereby set aside and all proceedings subsequent thereto.”

The notice of motion specified a motion to set aside “the judgment by default against said .defendant and all subsequent proceedings thereof.” Nothing therein contained informed appellant of a motion to vacate the default of respondent. In the affidavit attached to the notice of motion there is the following: “This defendant asks that his default be set aside and that he be permitted to answer and have said action tried upon its merits.”

Appellant complains of the order made because it went beyond the terms of the notice of motion and vacated the default of the respondent in addition to granting the relief specified. The form of the motion made by respondent does not appear in the record. We are therefore justified in assuming that it covered all of the relief granted by the court. The record does not show any objection by appellant in the trial court to the form of the motion or to the extent of the relief granted. He makes his objection for the first time here.

It is the well-settled law of this state that where both parties appear and contest a motion, without objection