Boland v. All Persons Etc.

SHAW, J.

In a proceeding under the so-called McEnerney Act (Stats. 1906, [Ex. Sess.], p. 78), the plaintiff obtained judgment declaring him to be the owner in fee of a certain lot in San Francisco. The judgment was rendered, upon

[488]

default, on May 27, 1907. On December 2, 1907, Dolores V. Stephens, claiming as sole heir of Micaela A. de Morgan, deceased, served and filed a notice of motion to be made on December 13, 1907, to set aside the judgment and open the cause for further proceedings in defense. On May 26, 1908, she was duly appointed as the administratrix of the estate of Micaela A. de Morgan and as such, on the same day, she served and filed a notice of motion to be made on May 27, 1908, to set aside the judgment and allow her to answer. Both motions were denied by the court. Prom the orders denying them Dolores V. Stephens, for herself and as administratrix, appeals.

More than six months had elapsed after the rendition of the judgment before either motion was made. They were therefore too late as applications for relief on the ground of mistake, inadvertence, surprise, or excusable neglect, under the first clause of section 473 of the Code of Civil Procedure.

(Brownell

v.

Superior Court,

157 Cal. 710, [109 Pac.

91]; Thomas

v.

Superior Court,

6 Cal. App. 631, [92 Pac. 739].)

Another clause of the section provides that “when from any cause the summons in an action has not been personally served on the defendant, the court may allow, on such terms as may be just, such defendant or his legal representative, at any time within one year after the rendition of any judgment in such action, to answer to the merits of the original action.”- The appellant claims that the application was sufficient under this clause and that upon the facts shown at the hearing of the respective motions, each of them should have been granted. There was no personal service of the summons on Micaela A. de Morgan, nor was she named in the affidavit filed with the complaint as required by sections 5 and 6 of the act, as a person claiming a lien upon or interest in the lot. The motions were heard together and upon the same affidavits. It is unnecessary to consider any question except the proposition that Micaela A. de Morgan was barred during her lifetime by reason of her laches and acquiesence in the proceedings. Upon this ground we think the motions were properly denied.