City Properties Co. v. Meacham

KERRIGAN, J.

In this action the plaintiff takes three appeals—one from an order denying his motion to enter the default of the defendant; another from a purported judgment entered by the clerk and subsequently set aside by the court, and the third from the order setting said purported judgment aside.

As to the first of these appeals it appears that the plaintiff served upon the defendant an amended complaint, and at the

[697]

expiration of ten days .thereafter, no answer having been served or filed, caused the clerk to enter the defendant’s default. The plaintiff, however, did not file said amended complaint so served upon defendant until some eight days after said service, so that at the time of the entry of defendant’s default by the clerk his time to answer had not expired—the service not being complete until the filing of the paper

(Coker

v.

Superior Court,

58 Cal. 177, 178;

Billings

v.

Palmer,

2 Cal. App. 432 [83 Pac. 1077]). The defendant moved to set this default aside. Pending this motion, more than ten days after the filing of said amended complaint having elapsed, the plaintiff moved the court to enter the default of the'defendant. These motions came on for hearing together, and the court granted the motion of defendant, and denied that of the plaintiff ; and it is this latter order that the plaintiff asks to have reviewed as an incident to his appeal from the judgment. .

We think it clear that this order of the trial court was correct. Pending his motion to set aside the default, which the plaintiff had irregularly caused to be entered against him, the defendant was not required to file his answer; and indeed the clerk would have been justified in refusing to file it if tendered, in view of the state of the record which disclosed that the defendant’s default had been entered.

As to the purported appeal from the judgment and the order setting it aside, it appears that at the conclusion of the trial judgment was ordered entered in defendant’s favor. Thereafter the defendant prepared findings—they not having been waived—and delivered them to the clerk of the court for submission to the judge; but the clerk inadvertently entered them as the judgment of the court without the judge of the court having seen or examined them. Upon motion of the plaintiff timely made, this judgment so entered was by the court vacated.