Marston v. Rood

California Court of Appeal Jan 21, 1944 No. Civ. No. 3252Published

Before: Marks

AI Brief

AI-generated · verify before citing

Holding. The court held that while the trial court lacked the authority to entirely vacate a consent judgment, it possessed the power to modify the judgment to reflect the parties' original intent and prevent injustice. The order was reversed with instructions to modify the judgment's description of the subject property.

Issues

Whether the trial court had jurisdiction to consider a motion for relief under section 473 of the Code of Civil Procedure after the six-month period had expired.
Whether the trial court had the authority to vacate or modify a consent judgment to correct an erroneous description of the subject matter.

Disposition. reversed with instructions

Quotations verified verbatim against the opinion

“The notice of motion having been served and filed, and the motion having been made within the six months’ period prescribed in section 473 of the Code of Civil Procedure, the trial court retained jurisdiction to consider and pass on this motion”

“While the trial court may not have had the power to entirely vacate the consent judgment in this case, it should have had the power to modify it and make it carry out his intention when rendering it.”

MARKS, J. This is an appeal from an order vacating a judgment. The judgment was rendered by consent. It was [436]dated March 20, 1942, filed March 23, 1942, and entered March 24, 1942. It decreed that “pursuant to said confession of judgment and stipulation, that a TRUST be declared upon the diamonds described in the complaint, to-wit, the ten (10) and six (6) carat diamonds; that the defendant C. M. Rood be declared Trustee. ...”

On September 12, 1942, defendant filed a notice of motion to relieve him from the judgment entered and to enter a judgment in its stead, a copy of which was attached to the notice of motion. This proposed judgment differed from the judgment entered by substituting the following for the portion already quoted: “pursuant to said confession of judgment and stipulation, that a TRUST be declared upon "the diamonds pledged to Defendant C. M. Rood by the Plaintiff Grace M. Marston; that the defendant C. M. Rood be declared Trustee. ...”

The notice of motion specified that the motion would be made on the grounds of inadvertence, surprise, and excusable neglect. Supporting affidavits were filed with the notice of motion.

The record shows that the motion was made and argued on September 18, 1942, and that further hearings were had and various affidavits submitted and oral evidence taken on September 25, 1942, and on January 28, February 11, February 13, March 4, and March 12, 1943, when the trial court made an order vacating and setting aside the prior judgment without ordering its modification or the entry of the proposed judgment which was merely a modification of the judgment entered.

The motion was evidently made under the provisions of section 473 of the Code of Civil Procedure. The notice of motion was given and the motion was actually made and argued within the six months’ limitation provided in that section although it was not decided until several months thereafter.

The notice of motion having been served and filed, and the motion having been made within the six months’ period prescribed in section 473 of the Code of Civil Procedure, the trial court retained jurisdiction to consider and pass on this motion after the expiration of that time. It has been held sufficient if the proceeding has been called to the court’s attention within such time. (In re Yoder, 199 Cal. 699 [251 P. 205]; Estate of Grivel, 208 Cal. 77 [280 P. 122]; [437]

Marston v. Rood

AI Brief

More from California Court of Appeal

Related research

AI Brief