Bouvett v. Layer

YORK, P. J. On September IT, 1935, action was instituted by respondent, as administrator of the estate of Mary Belle Bouvett, also known as Mary Belle Phelps, deceased, to collect four promissory notes executed at various times theretofore by appellant in favor of said deceased. On November 13, 1935, judgment by default for the sum of $8,120.43, together with attorneys’ fees, interest and costs of suit, was entered against appellant.

On or about June 8, 1937, appellant filed and served his notice of motion to vacate the default judgment of November 13, 1935, on the ground that it was “void on its face for the reason that the complaint upon which the same was rendered did not state facts sufficient to constitute a cause of action, or confer jurisdiction upon the court to render said or any judgment in this action”.

On June 15, 1937, said motion was granted after a hearing in department 35 of the Superior Court of Los Angeles County at which no appearance was made on behalf of said respondent.

Thereafter, to wit, on June 18, 1937, respondent administrator served notice of motion to vacate said order of June 15th setting aside the default judgment, on the grounds of surprise, inadvertence and excusable neglect under section 473 of the Code of Civil Procedure. This motion was granted on June 21, 1937, at which time the said court “without any [45]further notice or proceedings . . . proceeded to and did deny the original motion of defendant, heard and granted on the 15th day of June, 1937, to vacate said (default) judgment”.

This appeal is prosecuted from the order of June 21, 1937, granting the motion of respondent to vacate the order of June 15th setting aside the default judgment; and also from the order of June 21st, denying appellant’s motion to set aside the default judgment, which had originally been heard and granted on June 15th.

Appellant urges (1) that the trial court “was guilty of an absolute abuse of discretion in granting the motion setting aside the order vacating the default judgment in this case, as there was absolutely no showing made of any legal inadvertence or excusable neglect upon which to base” such order; “the only showing being made was of bare negligence on the part of respondent’s attorney in not being present at the June 15, 1937, hearing”; (2) that the complaint in the original action did not state a cause of action or confer jurisdiction upon the court, therefore, the default judgment was void on its face.