Bettencourt v. Superior Court

CONREY, P. J.

On March 13, 1916, in an action for divorce wherein petitioner Joe A. Bettencourt was plaintiff and Antonia de Gelloria Bettencourt was defendant, and wherein the default of the defendant had been duly entered, an interlocutory judgment of divorce was duly filed and entered. In August, 1916, the defendant served and filed a notice of motion, together with affidavits and a copy of her proposed answer, stating in the notice that on September 11, 1916, she would move the court to vacate and set aside her default and the said interlocutory judgment, upon the ground that said default and interlocutory judgment of divorce were taken, made, and entered through the mistake, inadvertence, surprise, and excusable neglect of the defendant. The minutes of the superior court for September 11, 1916, show the following proceeding in said action: “The motion to vacate

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and set aside the interlocutory decree of divorce, coming on regularly to be heard at this time, and H. Scott Jacobs, Esq., attorney for the plaintiff, and J. L. C. Irwin, E'sq.,'attorney for the defendant, being present, it is ordered, by consent of attorneys for both parties, that the same be continued to Saturday, September 16th, 1916, at 10 o’clock A. M.” The minutes of September 16th in the same action show the presence in court of the same attorneys, “and the motion to vacate and set aside the interlocutory decree of divorce, coming on regularly to be heard at this time, the same was argued by the respective counsel, and the court being fully advised, orders that said motion be granted.” The foregoing facts appear from the return of respondent to the writ of review heretofore issued out of this court on petition of the plaintiff Joe A. Bettencourt.

The order setting aside the interlocutory decree was concerning a matter arising under section 473 of the Code of Civil Procedure, which authorizes the court to relieve a party from a judgment, order, or other proceeding taken against him through his mistake, inadvertence, surprise, or excusable neglect, “provided, that application therefor be made within a reasonable time, but in no case exceeding six months after such judgment, order, or proceeding was taken.” Petitioner claims that from the foregoing record it appears that the application for relief was not made within six months after the thirteenth day of March, 1916, at which time the six-months’ period mentioned in section 473 began to run; and therefore that the superior court was without jurisdiction to make the order of September 16th. If the record of proceedings had on September 11th is sufficient to support the inference that the application for relief was made on the eleventh day of September, then the fact that the continuance was had and the order was not made until September 16th would not impair the jurisdiction of the court. Notice that an application or motion will be made to the court at a specified time, even though such notice be filed, as well as served, is not itself an application or motion. And it has been held that where notice of motionefor relief under section 473 was served and filed prior to the expiration of the six-months’ period, and the notice gave warning that the motion would be made on the stated day, which was after the six months expired, the application was not made in time and the court was not authorized