Azadian v. Superior Court

HOUSER, Acting P. J.

-Certiorari. The salient facts upon which the temporary writ herein was issued appear to be that on August 18, 1926, in an action for divorce pending between petitioner and his wife, Alma Azadian, wherein the default of said defendant for her failure to answer the complaint, or to appear therein, had been entered, the Superior Court caused to be entered on its official minutes an order granting to petitioner an interlocutory judgment of divorce from said Alma Azadian; that on August 24, 1926, such interlocutory judgment was entered; and that more

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than one year after the order for judgment, to wit, on the twenty-third day of August, 1927, on a motion made by the defendant, based upon the grounds of her surprise and excusable neglect, the Superior Court made an order vacating the default of the defendant and setting aside said interlocutory decree of divorce between said parties.

Among other things, section 473 of the Code of Civil Procedure contains a provision that the lower court may relieve a party from a judgment taken against 'him through his mistake, inadvertence, surprise, or excusable neglect, provided that application therefor be made within a reasonable time, but in no ease exceeding six months after such judgment was rendered; but that “ . . . when from any cause the summons in an action has not been personally served on the defendant, the court may allow, on such terms as may be just, such defendant or his legal representative, at any time within one year after the rendition of any judgment in such action, to answer to the merits of the original action.”

It appearing that the summons in the divorce action was not “personally served on the defendant,” the precise point presented to this court for its determination is whether the lower court had jurisdiction to vacate the default of the defendant and to set aside its judgment more than one year after the order for such judgment was entered on its official minutes.

It will be noted that the statute provides in substance that such an order may be made at any time within one year after the

rendition

of the judgment. In that connection, respondents concede that ordinarily the rendition of a judgment occurs when it is entered in the minutes of the court, and that the time for seeking relief under the statute (sec. 473, Code Civ. Proc.) begins to run from the time when the judgment was so entered.