Shelley v. Casa De Oro, Ltd.

California Court of Appeal Aug 15, 1933 No. Docket No. 1045.Published

Before: Barnard

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Holding. The court held that although the respondent made a general appearance by including non-jurisdictional grounds in its motion to vacate, the trial court's order setting aside the personal judgment was proper because the judgment-roll failed to support a personal liability against the respondent.

Issues

Whether a motion to vacate a judgment based on lack of jurisdiction constitutes a general appearance if it includes non-jurisdictional grounds.
Whether a personal judgment in a mechanic's lien action can be sustained against a property owner absent evidence of contractual liability.

Disposition. affirmed

Quotations verified verbatim against the opinion

“It seems to be settled in this state that the inclusion in the motion of any ground inconsistent with the sole claim that the judgment is entirely void for want of jurisdiction of the person is sufficient to convert the attempted special appearance into a general appearance.”

“Where an inspection of the judgment-roll is sufficient to disclose the invalidity of a judgment, the same may be set aside on motion.”

“In a mechanic’s lien action, a personal judgment against an owner where there is no contractual liability between such owner and the claimant is erroneous.”

BARNARD, P. J.

In this action to foreclose a mechanic’s lien, the complaint alleged that the plaintiff entered into a written contract with Casa De Oro, Ltd., for the installation of a sprinkling system on certain described land. Malesa Development Company and a third corporation were joined as defendants, it being alleged that all three defendants were the owners of the land. An attorney entered an appearance for “the defendants”, and later the action was dismissed as to the third corporation. After a trial, the court entered a judgment, on May 21, 1932, denying the claim of a mechanic’s lien on the ground that notice had been filed too late but giving a personal judgment for the amount claimed against, the two remaining defendants.

On June 22, 1932, the Malesa Development Company gave notice of a motion to vacate and set aside this judgment upon the ground that no summons had been served upon it, that no appearance had been made by it or by anyone authorized by it to appear, and that the purported appearance by tire attorney referred to was entirely without its

[722]

authorization and without its knowledge or consent. After a hearing upon the records and files in the action and upon certain affidavits, the court granted the motion and vacated and set aside the judgment referred to. From that order this appeal is taken.

It was stipulated and is conceded that the respondent was never served with summons and while the appellant maintains that the evidence produced upon the hearing was not sufficient to overcome certain recitals in the judgment to the effect that the “defendants” appeared by an attorney, the affidavits contain ample proof that the attorney referred to was never authorized to appear for the respondent, including an affidavit by him admitting that he was not authorized to so appear and stating the reasons why the mistake was made.

It is urged by the appellant that this evidence was improperly received, that this was a collateral and not a direct attack upon the judgment and, for that reason, no facts

dehors

the record could be received. It is well settled that such a motion as this is a direct and not a collateral attack upon the judgment, notwithstanding the consideration of other evidence.

Shelley v. Casa De Oro, Ltd.

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BARNARD, P. J.

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