Phillips v. Trusheim

EDMONDS, J. More than three years after the service of summons upon Alvin C. Trusheim, judgment was entered against him. Later he successfully moved to vacate the judgment upon the ground that there was no jurisdiction to render it, and the question for decision concerns the right of the court to make the order in his favor.

William E. Phillips and his wife, the appellants, sued to quiet title to 80 acres of land. They named as defendants Wofford T. Caldwell and Vera C. Caldwell, the owners of the property adjoining on the west, and Trusheim, the neighbor on the east. The purpose of the litigation is to determine boundary lines.

The complaint was filed in 1938 and the Caldwells promptly answered. The default of Trusheim was entered on January 6, 1939, and after a second service upon him, his default was again entered on March 30, 1939. Later Trusheim was adjudged an incompetent and the superior court appointed a guardian of his person and estate. In June, 1940, more than six months after the entry of the default, the guardian gave notice of a motion to vacate it upon grounds specified in section 473 of the Code of Civil Procedure. The notice was accompanied by a proposed answer but the motion was never made and no permission to file the pleading was ever obtained.

[915]Judgment in favor of the appellants was entered in September, 1942, more than “three years after service of summons” (Code Civ. Proe., § 581a). The judgment is based upon a written stipulation between the appellants and the Caldwells, and upon the default of Trusheim. Within 60 days from the entry of judgment, Trusheim filed a notice of motion to vacate it and to dismiss the action as to him, but he did not appeal. No grounds for the motion were stated in the notice, but by amendment, counsel declared that the court would be asked to vacate the judgment because of Trusheim’s “mistake, inadvertence, surprise and excusable neglect.” Thereafter, by a second amendment to the notice, as an additional ground, it was stated that, because judgment was not entered within three years after the service of summons, it was void as to him. When the matter was heard, counsel for Trusheim stated in open court that he did not rely upon section 473 of the Code of Civil Procedure but based his motion upon the ground that the court was without jurisdiction to enter the judgment. The motion was granted and the court ordered the judgment vacated and the action dismissed as to Trusheim solely for the reason that the judgment was not entered within three years after the service of the summons and complaint upon him.