Reher v. Reed (1913) · DecisionDepot

Reher v. Reed

Name: California Superior Court Tentative Rulings
Creator: DecisionDepot
License: https://creativecommons.org/licenses/by-nc/4.0/

California Supreme Court Dec 10, 1913 No. L.A. No. 3225.Published

Before: Shaw

AI Brief

AI-generated · verify before citing

Holding. The court held that a clerk lacks authority to enter a default judgment when an answer has already been filed, even if filed after the stipulated deadline, and such a void judgment may be set aside by the court at any time.

Issues

Whether a clerk is authorized to enter a default judgment when an answer is on file at the time of the application.
Whether a motion to set aside a default judgment requires an affidavit of merits when a verified answer is already on file.

Disposition. affirmed

Quotations verified verbatim against the opinion

“The clerk is not authorized to enter a default for failure to file an answer when such answer is on file at the time such default is attempted to be entered.”

“In such a case the court may set aside the judgment of its own motion at any time, and it is immaterial how the invalidity is called to its attention.”

Synopsis

The facts are stated in the opinion of the court.

SHAW, J.

This is an appeal from an order setting aside a judgment and default entered by the clerk. The defendant filed a cross-complaint against the plaintiff and also against George C. Reher and C. M. Reher who were not parties to . the action, asking that they he brought in, and for judgment against them for $7,285. A summons on the cross-complaint was served on said parties defendant thereto in May, 1911,

[527]

and by a stipulation filed in the cause their time to plead to the cross-complaint was extended to October 21, 1911. No answer or demurrer was filed within that time. On October 31, 1911, no default having been entered or demanded, the said cross-defendants duly served and filed their answer to the cross-complaint. Thereafter, on November 8, 1911, upon application of said Reed, an entry was made by the county clerk declaring the default of said cross-defendants for failure to answer the cross-complaint within the time stipulated, and upon said supposed default the clerk then entered judgment against them for the sum demanded in the cross-complaint.

On December 13,1911, the said parties gave a written notice that they would move the court to set aside said judgment, stating therein’“that said motion will be based upon the records and papers on file in the office of the county clerk and upon the affidavits of H. W. Brewer and P. C. Parr, copies of which are hereto attached,” but not otherwise stating the grounds upon which the motion would be made. Objection to the hearing of the motion was made by the appellant, Reed, because the notice did not set forth the grounds of the motion, and because no affidavit of merits was filed or presented. The court overruled the objections, granted the motion, and ordered that the judgment be set aside. In support of this appeal the appellant renews the objection made at the hearing.

The objection that there is no affidavit of merits is fully met by the fact that the answer was already on file, that it was duly verified, and that it states a good defense to the cause of action set forth in the cross-complaint.

(Fulweiler

Hog’s Back etc. Co.,

Reher v. Reed

AI Brief

Synopsis

SHAW, J.

More from California Supreme Court

Related research

AI Brief