United States Ex Rel. Hoey v. Duesdieker

California Court of Appeal Dec 1, 1931 No. Docket No. 7970.Published

Before: Spence

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Holding. The court held that the trial court did not abuse its discretion in denying a motion to set aside a default judgment where the defendants failed to show that their former attorney's neglect was excusable, and that the inclusion of surplusage in the judgment did not render it void.

Issues

Whether the trial court abused its discretion in denying a motion to set aside a default judgment based on the neglect of former counsel.
Whether a judgment is void when it contains descriptive surplusage that does not alter the identity of the property described in the complaint.

Disposition. affirmed

Quotations verified verbatim against the opinion

“It is well settled that an application for relief under section 473 of the Code of Civil Procedure is addressed to the sound discretion of the trial court and its ruling either granting or denying the motion will not be disturbed”

“If appellants’ failure to appear was the result of such neglect on the part of their former attorney, they are chargeable therewith”

“If as stated by appellants, said premises are outside of the city of Richmond then the words “in the City of Richmond” are mere surplusage not affecting the validity of the judgment.”

SPENCE, J.

This is an appeal hy defendants Joseph P. Duesdieker and Alice Duesdieker from an order denying their motion to set aside their default and the default judgment entered against them.

The complaint was filed on February 6, 1931, seeking to enjoin these defendants and others from using certain premises in violation of the National Prohibition Act (27 U. S. C. A.) and to obtain an order closing the building on the premises known as “The Chateau” for the period of one year. Summons was personally served on these defendants on February 12th and a return was filed. The default of defendants was entered on March 5th. After a hearing on March 19th, judgment was entered on March 24th. On' April 13th defendants filed their notice of motion to set aside the default and default judgment on the grounds that these were entered through the mistake, inadvertence, surprise and excusable neglect of said defendants and their former counsel and that the judgment was void in that it did not conform to the complaint. The motion was accompanied by a verified answer and was supported by the affidavit of defendant Joseph P. Duesdieker. The material allegations of the affidavit for the purposes of this appeal showed that defendants engaged their former counsel to represent them in the action and that they were assured by their former counsel that he would fully care for and protect their legal rights; that defendants learned for the first time on or about March 20th that a default had been taken against them and they thereupon demanded the return of the summons and complaint from their former counsel. No affidavit of their former counsel was filed and no showing was made as to his reason for not appearing for the defendants. There

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after the district attorney filed a counter-affidavit showing that no written or oral stipulation extending time had ever been granted; that said district attorney at no time communicated with defendants’ former or present counsel except that he addressed a letter to their present counsel on February 10th advising him that he intended to proceed with the action and that on another occasion he also advised their present counsel that unless defendants answered he would take a default judgment against them. The counter-affidavit contained further allegations relating to the inability of the district attorney to again secure the attendance of witnesses for trial in the event that the motion was granted.

United States Ex Rel. Hoey v. Duesdieker

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SPENCE, J.

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