Fast v. Young

JAMES, J.

This proceeding in

certiorari

was brought for the purpose of having reviewed an order made in the justice’s court of Los Angeles township, whereby a judgment entered in an action brought in that court by the petitioner here against one Mrs. H. Grant was vacated and set aside under the provisions of section 859 of the Code of Civil Procedure. After return made to the writ in the superior court and hearing had thereon, the court ordered the proceedings to be dismissed, and petitioner appeals.

In the justice court action the defendant, within the time allowed by law, made appearance by demurring to the complaint. The demurrer was filed on August 9, 1911; there- ■ after, on September 18,1911, an order was made by the justice

[579]

overruling the demurrer and allowing defendant three days within which to answer. No answer was filed and, on September 28, 1911, judgment was entered in favor of plaintiff. Thereafter, on October 6, 1911, defendant filed a notice of motion to have the judgment vacated on the ground that it had been taken against her through her excusable neglect, and an affidavit of merits in proper form and of sufficient substance was filed, which affidavit also set forth facts from which the justice might conclude that the neglect of defendant in failing to file her answer was excusable. Thereafter, on October 13, 1911, the motion came on to be heard and the justice made an order setting aside the judgment and allowing the defendant to answer to the complaint.

It is contended in the brief of counsel for appellant that the justice had no jurisdiction to make the order setting aside the judgment, because the motion for that order was heard more than ten days after the entry of judgment. ■ Section 859 of the Code of Civil Procedure,, prior to the year 1905, did provide that such a motion must be presented within ten days after the entry of judgment. The legislature of 1905, however, amended the section [Stats. 1905, p. 254], and it has since provided that such a motion must be made within ten days after

notice

of the entry of judgment. The affidavit filed in support of the motion showed that the counsel for defendant in the justice court action did not have notice that judgment had been entered against his client until the third day of October, 1911. The motion to vacate the judgment having been heard on October 13, 1911, the order of the justice made on that day granting the motion was made within the time provided for by the statute.