Pease v. City of San Diego

BARNARD, P. J. This is an appeal from an order setting aside a default judgment.

The plaintiff, who is an attorney at law, brought this action on October 1, 1941, to quiet his title to a certain lot in San Diego, but summons was not served on the city for nearly three years. On August 8, 1944, the city filed another action naming this plaintiff as a defendant, seeking to quiet its title [930]to the same lot. On September 19, 1944, this plaintiff filed an answer in that action and also served the city of San Diego with summons in the instant action. However, that summons was not returned to the court until October 17, 1944, more than three years after the commencement of this action.

On October 13,1944, the city moved to dismiss this action on the ground that summons had not been returned within three years. On November 20, 1944, the court denied this motion, on the ground that by so moving the city had made a general appearance, and gave the city thirty days in which to “file any further proceedings.” On December 11, 1944, the city filed in this court a petition for a writ of prohibition, based on the contention that the superior court had lost jurisdiction to proceed with this case since summons had not been returned within three years. That petition was denied on December 19, 1944. The city then filed a petition for hearing in the Supreme Court, which was denied on February 15, 1945. In the meantime, and on December 21, 1944, on application of the plaintiff, the clerk of the trial court had entered the default of the city.

On February 26, 1945, the city served on the plaintiff and filed in the clerk’s office a notice of motion to set aside its default, together with its proposed answer, noticing the matter for hearing on March 5, 1945. On March 2, 1945, the plaintiff filed an application for entry of a judgment based upon the default of the city with an affidavit stating, among other things, that the city had intentionally avoided filing a demurrer or answer by taking proceedings in the appellate courts, and that its failure to demur or answer had been willful and deliberate. On the same day, the court entered a judgment quieting title to this lot in the plaintiff as against any and all claims of the city of San Diego.

On March 12, 1945, the city’s motion to set aside its default came on for hearing and, apparently, a motion to set aside the judgment was also heard. On March 13, 1945, the court entered an order granting the motions, but reserving for future consideration the question raised as to the jurisdiction of the court to proceed with the action. The order further vacated and set aside the default of the city and the judgment which had been entered in favor of the plaintiff; ordered the city’s answer filed; and ordered this action consolidated with the action filed on August 8, 1944. From this order the plaintiff has appealed.