Steuri v. Junkin

California Court of Appeal Apr 21, 1931 No. Docket No. 6640.Published

Before: Thompson

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Holding. The court held that a default judgment entered prematurely, before the expiration of a court-ordered extension of time to answer, is void and must be vacated without the necessity of an affidavit of merits or compliance with section 473 of the Code of Civil Procedure.

Issues

Whether a default judgment entered after a court-ordered extension of time to answer but before the expiration of that extension is void.
Whether a motion to vacate a prematurely entered default judgment requires an affidavit of merits or compliance with section 473 of the Code of Civil Procedure.

Disposition. affirmed

Quotations verified verbatim against the opinion

“the facts show that he never was in default for the reason that the order extending time was obtained before the ten days in which defendant had to answer had expired.”

“The enlarged time given a defendant by a court to answer is as complete a protection from default as is the original time given to answer, as specified in the summons, in which latter case no affidavit of merits is requisite.”

“The defendant, not having been in default, was not compelled to seek relief through compliance with the provisions of section 473 of the Code of Civil Procedure”

THOMPSON (IRA F.), J.

This appeal is from an order vacating a default judgment. The facts are as follows: The defendant was served with a copy of the complaint and summons on January 6, 1929. It appears from an affidavit of one of defendant’s attorneys that on January 16th an order was signed by a judge of the superior court extending the time within which defendant might answer to January 26, 1929; that on the sixteenth day of January defendant’s attorneys instructed their process server to serve the order upon plaintiff’s attorney; that the person engaged to make the service reported to defendant’s attorneys that counsel for plaintiff refused to accept service. It further appears from the affidavit, without contradiction, that counsel for plaintiff had previously refused to accept service of papers in the action; that thereupon defendant’s attorneys instructed the process server to again attempt to make service, and that on January 17, 1929, the order was actually served; that on the same day plaintiff’s attorney caused the default of defendant to be entered, which was followed by the entry of judgment and the filing of a cost bill against defendant. On February 21, 1929, defendant served notice of intention to move to vacate the judgment, his notice stating: “said motion will be made upon the files and records of said action and upon the affidavit of Fred E. Subith (defendant’s attorney) heretofore served”. The court granted the motion.

Appellant contends that (1) the notice of motion was insufficient in that it failed to apprise appellant of the grounds of the motion; (2) the application for relief from the default should have been denied because it was not accompanied with a copy of the proposed answer; (3) the attorney’s affidavit was insufficient as an affidavit of merits; and (4) that the court abused its discretion in vacating the judgment for the foregoing reasons.

These contentions of appellant are based on the supposition that defendant was

actually in default,

whereas

[555]

the facts show that he never was in default for the reason that the order extending time was obtained before the ten days in which defendant had to answer had expired. In California Jurisprudence, volume 21, at page 228, it is said: “If the defendant fails to answer within the statutory time,

Steuri v. Junkin

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THOMPSON (IRA F.), J.

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