Central Business Bureau v. Deer Creek Tungsten Mine

MARKS, J. This is an appeal from an order refusing to vacate a prior order or judgment of the superior court.

John E. Wright is an individual who was doing business under the name of Central Business Bureau. At all material times Evelyn G. Hall was manager of Central Business Bureau.

Central Business Bureau was a judgment creditor of Deer Creek Tungsten Mines, Blake Wilson, David Bushnell and William Morris. There was an unpaid balance of $810.67 on this judgment.

On September 16, 1946, execution on this judgment was issued and placed in the hands of the sheriff of Los Angeles County with instructions to levy on the community interest of David Bushnell in a certain 1941 Mercury sedan. The levy was made on October 1, 1946. About October 8, 1946, Mabel MacPerran Rockwell served her third party claim to the automobile and plaintiff gave an undertaking to the sheriff to hold the property.

About October 18, 1946, Mabel MacPerran Rockwell filed her petition for a hearing on her third party claim praying that she be decreed the owner of and entitled to the possession of the automobile. This petition was regularly set for hearing on the 4th day of November, 1946, and due notice of the hearing was served by mail on October 19, 1946.

According to the order and the notices given a hearing was had on November 4, 1946, on the petition of Mabel MacPerran Rockwell to determine the third party claim to the automobile, [69]and no one appearing to contest her claim it was adjudged that she was the owner and entitled to the possession of the automobile. It does not appear that notice of this judgment was served on plaintiff, it having made no appearance at the hearing.

Under date of April 22, 1947, plaintiff gave notice that on the 28th day of April, 1947, it would move to vacate the order of November 4th, 1946, on the ground “that said default judgment was taken against plaintiff through plaintiff’s mistake, inadvertence, surprise and excusable neglect.” This motion was denied by a formal order dated April 30th, 1947, filed May 3d, 1947, and this appeal followed.

The notice of motion to vacate the judgment of November 4, 1946, is supported by an affidavit of merits by John E. Wright which is in the usual form, and affidavits by the attorney for plaintiff, and one by Evelyn G. Hall. The reasons for asking that the judgment of November 4, 1946, be set aside, appearing in the affidavit of the attorney, seem to be the filing of a petition in bankruptcy by David Bushnell and “that by reason of the fact that said third party claim is based upon a claim of ownership and right to possession, your affiant verily believes that said Mabel MacPerran Rockwell was not entitled to have said judgment entered as aforesaid, and affiant further verily believes that said judgment should not have been entered for the reason that the issues were at the time of the entry of said judgment moot.” It is further stated in this affidavit that plaintiff was not served with notice of the judgment and learned of its rendition by accident. Apparently this was given as an explanation of the delay in filing the motion to vacate and not as an added reason why the judgment should be vacated.