Edwards v. Hellings

California Supreme Court Jun 25, 1894 No. No. 15230Published

Before: Harrison

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Holding. The court held that the trial court properly exercised its discretion in denying the motion to set aside a default judgment and refusing to quash the execution, as the judgment was regular and the defendant's neglect did not warrant relief.

Issues

Whether the trial court abused its discretion in denying a motion to set aside a default judgment and quash execution.
Whether a judgment entered against one of several defendants after the others were not served is valid under the Code of Civil Procedure.
Whether the clerk's failure to enter judgment 'immediately' after default renders the subsequent judgment void.

Disposition. affirmed

Quotations verified verbatim against the opinion

“The court properly exercised its discretion in denying the application to set aside the default and judgment against the appellant, and refusing to relieve him therefrom.”

“The judgment was not void, and the execution had been regularly issued thereon within a few months after its rendition.”

“The provision that the clerk must enter the judgment “immediately” after entering his default is merely directory.”

Synopsis

Vacation of Judgment by Default—Inexcusable Neglect—Discre-' tion. ■—Where the summons in a case has been regularly served upon the defendant, and the appearance of an attorney in his behalf was authorized by him, and default was made after the overruling of a demurrer to the complaint interposed by the attorney, the judgment by default cannot be set aside, where it appears that the client did not examine the complaint, and it does not appear that he gave his attorney any statement of the facts in the case, or which would constitute any defense thereto, or that he ever communicated with him in reference to the action, and a -statement in the application to vacate the default that he believed the attorney would defend the action upon its merits is not sufficient to show that the court did not properly exercise its discretion in denying the application.

Id.—Refusal to Recall Execution.—In such case the judgment, being regular in form, and rendered after the defendant’s default had been taken, is not void, and after an execution had been regularly issued thereon the court did not err in refusing to recall and quash the execu-' tion.

Id.—Entry of Judgment Against One of Two Defendants.—The entry of judgment against a defendant, who has been served after the overruling of his demurrer to the complaint, without at the same time entering judgment against a codefendant not served, is in accordance with' the statute.

Id.—Default—Entry of Judgment—Directory Provision.—The provision that the clerk must enter the judgment immediMcly after enter-' ing default is merely directory, and does not render void a judgment subsequently entered upon such default, nor can the defendant against whom the judgment is entered invoke such failure for the purpose of annulling a judgment to which he has no other defense.

Id.—Limitation Upon Judgment—When Statute Begins to Run.—The statute of limitations upon a judgment runs from the time of its entry,, and not from its rendition; and if the defendant desires to set the statute of limitations running he may himself cause the judgment to be entered at any time after its rendition.

Harrison, J. The plaintiff commenced an action against the appellant and another defendant February 16, 1884, for the purpose of recovering from them the amount of a judgment that had been previously rendered in the fifteenth district court for the city and county of San Francisco. The summons in the action was served upon the appellant alone, and was given by him to an attorney, with instructions to defend the action. This attorney filed a demurrer to the complaint, which was afterwards overruled for want of prosecution. Notice of such overruling was served upon the appellant’s attorney, and, no answer having been filed, his default was entered by order of the court March 14, 1884. Judgment was not entered against him upon this default until January 18,1892. An execution was issued upon this judgment March .19, 1892, and levied upon certain real property of the appellant, which was advertised by the sheriff to be sold on the 21st of April, 1892. On the 18th of April, upon the application of the appellant, the court in which the judgment had been entered made an order that the plaintiff show cause why the order of default and judgment theretofore made and entered therein should not be set aside, and the defendant allowed to file an answer, and also made an order staying proceedings in the mean time. Upon the hearing of this order to show cause the court denied the [206]application, and at the same time denied a motion by the appellant to recall and quash the execution that had been issued. From these orders he has appealed, bringing the matters here by a bill of exceptions.

The court properly exercised its discretion in denying the application to set aside the default and judgment against the appellant, and refusing to relieve him therefrom. The summons in the case had been regularly served upon the appellant, and the appearance of the attorney in his behalf was authorized by him. His instructions to the attorney to defend the action were of no avail to relieve him from the judgment, even if the attorney had failed to carry out his instructions. Although he says in his application that he firmly believed that his attorney would defend the action upon its merits, he also says that he did not examine the complaint to ascertain the exact nature of the action, nor does he say that he gave his attorney any statement of the facts in the case, or which would constitute any defense thereto, or that he ever from that time communicated with him in reference to the action; that within two days after-the service of the summons upon him he left the state, and it does not appear that he returned to it until December, 1891.

Edwards v. Hellings

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