Young v. Fink

CHIPMAN, C. Appeal from an order setting aside and vacating a default judgment rendered against defendant, and recalling an execution issued thereon.

The grounds of the motion on which the order was made were mistake, inadvertence, and excusable neglect in not answering plaintiff’s amended complaint; that the amended complaint changed the cause of action, and was not personally served on defendant, and on the further ground that the judgment was procured by fraud and without notice to defendant. It is not questioned by respondent that the judgment is regular on its face.

Appellant contends that the motion came too late, and ought not to have been granted on any of the grounds stated. It was filed six months and eleven days after judgment was entered.

1. Eespondent concedes appellant’s point as to the motion being too late on the grounds of defendant’s mistake, inadvertence, or excusable neglect, under section 473 of the Code of Civil-Procedure, but he contends that another provision of that section covers the case, to wit: “When, from any cause, the summons in an action has not been personally served on the defend[108]ant, the court may allow .... such defendant .... at any time within one year after the rendition of the judgment in such action, to answer to the merits of the original action.” The summons was duly served in the original action; hut it is insisted that the judgment was rendered on an" amended complaint which it is claimed set up a new cause of action, and, because it was not served personally upon the defendant, respondent is entitled to take advantage of the provision of the code just quoted. It is claimed by respondent, but is denied by appellant, that the attorney of record had ceased to he the attorney of respondent prior to the service upon this attorney of the amended complaint. He had appeared in the case and had filed a demurrer, and had caused the action to be transferred to the county where judgment was rendered, and there had been no substitution of any other attorney nor any withdrawal of his appearance entered of record. It was claimed, however, that appellant’s attorney had been told by respondent’s attorney, although not notified in writing, that the latter no longer represented respondent, and that he would not accept service of the amended complaint, and the attorney for respondent deposed that appellant’s attorney promised to serve his amended complaint upon respondent, and this, too, is denied under oath by appellant’s attorney.