Shupe v. Evans

COLLIER, J., pro tem.

pro

This is an unlawful detainer action. The chronology of the case is as follows:

February 23, 1923, complaint in unlawful detainer filed, and summons issued.

February 24, 1923, complaint and summons served on defendant.

February 28, 1923, default of defendant entered.

March 3, 1923, trial had.

March 3, 1923, findings and conclusions of law filed.

March 5, 1923, judgment filed and entered.

March 5, 1923, writ of possession issued.

March 6, 1923, writ of possession served and satisfied.

March 6, 1923, demurrer filed.

March 12, 1923, demurrer dropped from calendar.

March 18, 1923, notice of motion to set aside the judgment entered herein under section 473 of the Code of Civil Procedure.

May 18, 1923, affidavits of Thompson and the defendant filed.

[702]

May 18, 1923, proposed, answer filed.

June 11, 1923, order setting aside judgment entered.

June 19, 1923, notice of appeal filed.

It will be noticed that the judgment was entered March 5, 1923; that the notice to set aside said judgment was not served or filed until May 18, 1923, or almost two and one-half months after the entry of judgment; that the order setting aside said judgment was not entered until June 11, 1923, or over three months after default.

The appeal is taken from the order setting aside said judgment of March 5, 1923. Appellant claims that section 473 of the Code of Civil Procedure does not apply to an unlawful detainer action, while section 1179 of the same code does govern.

Respondent controverts this position, and alleges furthermore that the complaint fails to state a cause of action in this: (1) That the lease provides that said defendant shall “keep all of said grounds in first-class condition, including the proper attention and irrigation of grapes, shrubs, grass, vines and any other plants or trees growing thereon,