Thomas v. Superior Court, Etc.
Before: Cooper
Synopsis
Judgment by Default—Order Refusing to Vacate—Dismissal of Appeal—Second Motion too Late—Prohibition.—Where an order refusing to vacate a judgment by default was appealed from and the appeal dismissed by consent, such order thereby became final. But it seems, notwithstanding its finality, that a second motion might be made to vacate the judgment within six months after its entry, under section 473 of the Code of Civil Procedure; yet, where a notice within that time was given of a motion to be made the day after its expiration, the court had no jurisdiction to grant it, and prohibition will lie to prevent the granting of it. (By supreme court in denying rehearing. ^
COOPER, P. J.
Application for a writ of prohibition. The facts, as stated in the verified petition, and not denied, are as follows:
Petitioner commenced an action in the superior court against the California Fruit Distillery Association, E. Goldberg and others, for the purpose of recovering judgment upon the facts stated in his complaint, whereupon a summons was duly issued and served. A demurrer which had been interposed by defendants above named was overruled, and said defendants were allowed ten days in which to answer. On January 16, 1907, the said defendants having failed to answer, their default was entered, and on the following day judgment was entered upon such default against Goldberg for $1,179.10, and against the California Fruit Distillery Association for $1,180.83. On the twenty-fifth day of January, 1907, the said defendants named served and filed a notice of motion to set aside the default and judgment so entered against them, and the matter coming regularly on for hearing on June 6, 1907, the court duly made an order denying the motion to set aside the default and judgment, which order was duly entered. On July 12, 1907, the said defendants served upon plaintiff a notice of appeal from the said judgment, and from the order refusing to vacate the same and set aside the default. Appeal was perfected by filing the notice and giving the proper undertaking.
On July 13, 1907, the said defendants served and filed, without permission of the court, a second notice of motion, to the effect that on the nineteenth day of July, 1907, they would move the court to set aside the said default, and vacate the said judgment in said action.
On September 14, 1907, the said appeals of said defendants from the judgment and order refusing to set aside said de
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fault, were by the written request of said defendants’ attorneys, dismissed by this court, and said dismissal duly entered of record.
The said superior court is about to proceed, and unless prohibited, will proceed to hear the said second application to vacate said judgment, and set aside said default. The only question is as to the jurisdiction of the superior court to hear and determine the said second motion.
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