Sepulveda v. Apablasa

THOMPSON, J. This is an appeal on the part of three minor children by their guardian, John V. Apablasa, from two separate orders of court denying their motions to set aside [391]the judgment under the provisions of section 473 of the Code of Civil Procedure, which judgment was previously rendered in the suit for declaratory relief, entitled “Ildefonso A. Sepulveda, etc., v. John V. Apablasa, also known as J. V. Apablasa, also known as John C. Apablasa, et al.” affirmed by this court on appeal therefrom. That opinion was this day filed and appears at page 381, ante. This proceeding was consolidated with the last-mentioned case for the purpose of appeal.

The appellant, John V. Apablasa, Jr., is the minor son of John Y. Apablasa, his guardian, who was a defendant in the suit for declaratory relief above mentioned, and the appellants Harry McGruder and Margaret McGruder are the minor grandchildren of said guardian, by his deceased daughter, Ophelia Apablasa McGruder. It is contended these minor children were necessary parties to the suit for declaratory relief as interested beneficiaries of a trust created by John Y. Apablasa in his share of the property derived from the instrument of July 2, 1929, which was the subject of construction in the last-mentioned cause. The judgment was rendered in the action for declaratory relief, December 5, 1935. During the trial of that cause it was suggested by no one that these minors were necessary parties thereto. .The first motion to vacate that judgment was made August 23, 1937, after the lapse of a year and eight months from the entry of judgment. The second motion to vacate the judgment on the same ground was made two months later. Both motions were denied.

The respondents assert that the alleged trust under which the minor children claim a beneficial interest is void for uncertainty because it contains no description of the property affected. It is also pointed out that this suit was commenced January 6, 1934; that a lis pendens was recorded September 26, 1935, and that the alleged trust in which the minors were interested was not recorded until February 19, 1936, long-after the judgment was rendered in this suit. It is asserted that none of the respondents ever heard of the alleged trust in question until John Y. Apablasa first testified to it upon this trial. Even then no one suggested to the court that the minors were necessary parties to the action.

We are of the opinion the minor children are bound by the judgment in this case. The respondent, Burnand &