Bell v. McDermoth

RICHARDS, J.

This appeal is by the plaintiff from an order of the trial court, made upon motion of the defendant, setting aside its judgment theretofore entered in an action to quiet title and permitting the said defendant to appear and answer in said action. The original complaint was filed on April 5, 1922, and is in the usual form of an action to quiet title. The defendant named in said action was one J. P. Jack, who has since died and of whose estate the present defendant is special administratrix. On July 26, 1922, the judge of the court in which said action was pending made an order for the publication of summons therein, which order was based upon certain affidavits presented by the plaintiff as a basis for his application for said order. Thereafter the said summons was published in accordance with the terms of said order, and thereafter and upon a proper showing of the fact of said publication and mailing conformable to the terms of said order, and after the time had expired for the appearance of said defendant, a decree quieting title was signed and filed by the judge of the trial court. The date of the signing and filing of said decree was

[597]

December 27, 1922. Said decree, however, was not entered by the clerk of said court until January 4, 1923. On December 31, 1923, the present defendant, having in the meantime been appointed special administratrix of the estate of J. P. Jack, deceased, filed her notice of motion to set aside said decree upon the several grounds set forth therein, and said motion ■ coming on to be heard on January 10, 1924, was granted by the trial court and the proffered answer of said defendant was permitted to be filed. The plaintiff appeals from said order and upon said appeal sets forth certain reasons why the same should be reversed.

The first contention made by the appellant is that since the application of the defendant for said order appears to have been made upon a date more than one year after the rendition of said decree, the trial court had no longer jurisdiction to entertain the same under the provisions of section 473 of the Code of Civil Procedure. The provisions of said code relating to the time within which such an application must, under its terms, be made reads as follows: “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 decree in the instant case was signed by the trial judge and filed with the clerk of said court on December 27, 1922. That date, under the authorities, was the date of the rendition of said judgment.