Wharton v. Harlan

McKinstry, J. — This is an appeal from an order setting aside the defaults entered against certain of the defendants by the clerk of the Superior Court, for failure to answer.

The motion to set aside the judgment by default was made on the ground of “surprise.” The notice of motion was filed and served more than six months after the judgment was entered. As an application under section 473 of the Code of Civil Procedure, it was too late. The application for summary relief by motion must, by the terms of that section, be made within the six months. The application must be made within six months, even though the “ mistake, inadvertence, surprise, or excusable neglect” has been caused or brought about by fraud practiced by the party in whose favor the judgment or proceeding was taken. After that period, the question of “ mistake,” etc. (whatever the remedy in equity), cannot be tried by affidavit.

But where the judgment is void on the face of the roll, is the court debarred from declaring it null by the limitation of time found in section 473 of the Code of Civil Procedure? If not debarred, it is immaterial in what manner the attention of the court is called to its invalidity.

The clause of the sixty-eighth section of the former Practice Act — as the same stood when Bell v. Thompson 19 Cal. 706, was decided — read:—

“Or [the court] may, upon such terms as may be just and upon payment of costs, relieve a party, or his legal representatives, from a judgment, order, or other proceeding, taken against him through his mistake, inadvertence, surprise, or excusable neglect; when from any cause the summons and the copy of the complaint in an action have not been personally served on the defendant, the [424]court may allow, on such terms as may be just, such defendant or his legal representatives, at any time within six months after the rendition of a judgment in such action, to answer to the merits of the original action.”

In Bell v. Thompson, Mr. Justice Norton construed the last of the clauses just quoted, and seems to have held that the six months' limitation applied as well where the defendant was not served at all as where the service was by publication, as opposed to “ personal ” service. The learned judge deemed that he was bound so to hold in deference to prior decisions. However general the language of the opinion, that was the point decided in that case. It will be observed that, as the statute then read, a party was not required by its terms to apply for relief on the ground of “ mistake,” etc., within the time limited. But the court had held that “after the adjournment of the term, the court loses control of its judgments.”