California Beet Sugar Co. v. Porter

McKee, J. — The object of the action in hand is the annulment of a judgment, an" execution sale thereunder, and a certificate of purchase of real property levied on and sold under the judgment and execution. The court sustained a general demurrer to the complaint in the action, and that is assigned as error.

The cause of action, as stated in the complaint, is this: On the 24th of February, 1879, defendant Porter claimed that the corporation plaintiff was indebted to him in a large sum of money, for recovery of which he com[371]menced an attachment suit against the corporation in the then District Court of Santa Cruz County. Pending the suit, on the 2d of March, 1879, the parties to it compromised and settled the demand; and the defendant then stipulated and promised to dismiss the action.* Upon that stipulation and promise the defendant relied, and took no further steps or proceedings in the matter, fully believing that the defendant in this action would keep his promise and dismiss that action; but instead of dismissal, he, in disregard of his stipulation, proceeded without notice to the corporation, and took judgment therein for the amount demanded in the complaint, and which had been settled and satisfied, had an execution .issued upon the judgment, and caused it to be levied upon the real property of the corporation, which had been attached in the action, and sold at execution sale, — > defendant himself being the purchaser.

It is alleged that the cause of action was settled and satisfied on the 2d of March, 1879; that the judgment was taken on the 10th of July, 1879; and it appears that the action in hand was commenced on the 5th of April, 1880, six months after the sale, and nearly nine months after the judgment.

The contention is, that the- action is not maintainable, because the corporation plaintiff had a plain, speedy, and adequate remedy by motion, under section 473, Code of Civil Procedure, to set aside the judgment, and as it neglected to avail itself of that remedy, equity will not interfere. Section 473 provides:—

“The court may, .... upon such terms as may be just, relieve a party, or his legal representative, from a judgment, order, or other proceeding taken against him through his mistake, inadvertence, surprise, or excusable neglect; provided that application therefor be made within a reasonable time, but in no case exceeding six months after such judgment, order, or proceeding is taken.”