Title Insurance & Trust Co. v. King Land & Improvement Co.

SHAW, J.

The appeals here presented were taken from an order denying the several motions of the appealing defendants to set aside a judgment and to relieve them from a default entered against them.

The action was upon a promissory note executed to the plaintiff by the King Land and Improvement Company, Charles Kern, W. J. King, G. W. Burleigh, A. C. Black, H. E. Smith, H. C. Cartmell, C. R. Ward, Robert MePadden, William L. Inness, and Albert Puller, all of whom were made defendants. The appealing defendants are Black, Smith, Cartmell, Inness, Puller, and Kern, each of whom had suffered a default to be taken and entered against him. The defaults of all except Kern were entered by the clerk on January 4, 1909. Kern joined in an answer with the other defendants, Ward, Burleigh, and MePadden, but at the beginning of the trial, to wit, on June 1, 1909, he withdrew therefrom and thereupon his default was duly entered by the court. The judgment was rendered on March 3, 1910. The motion to have the defaults and the judgment set aside was made on May 16, 1910.

It is apparent that the applications to set aside the defaults came too late. They were made under the provisions of section 473 of the Code of Civil Procedure. All of the appellants were personally served with summons, and Kern personally appeared. In such cases, the court, under that section, is without power,to grant such relief unless the application therefor is made within a time not exceeding six months after the proceeding from which relief is sought was taken. As to all except Kern, the default was entered more than sixteen months before the application to vacate it was made. As to Kern, it was more than eleven months before the application.

The proposition that the taking and entering of a default is not a “proceeding taken against” the party in default, within the meaning of section 473, that the judgment is the only effectual proceeding, and that its date fixes the beginning of the period of six months within which a motion to set aside

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the default may .be made, is not tenable. A default is entered by the clerk or by the court, at the instance of the adverse party. It is clearly a proceeding against the delinquent party.

(Burns