Taintor v. Superior Court

California Court of Appeal Dec 28, 1949 No. Civ. No. 14312Published

Before: Peters

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Holding. A default judgment entered more than three years after service of summons in violation of Code of Civil Procedure section 581a is erroneous but not void, and a defaulting defendant is not entitled to notice of subsequent proceedings leading to the entry of judgment.

Issues

Whether a default judgment entered more than three years after service of summons is void for lack of jurisdiction under Code of Civil Procedure section 581a.
Whether a defendant whose default has been entered is entitled to notice of subsequent proceedings leading to the entry of judgment.

Disposition. denied

Quotations verified verbatim against the opinion

“It is well settled that a trial court has jurisdiction to render a default judgment more than ‘three years after service of summons’ (Code Civ. Proc., § 581a) although such a judgment is erroneous and subject to direct attack upon an appeal”

“A defendant against whom a default has been regularly entered is out of court and is not entitled to take any further steps in the cause affecting plaintiff’s right of action.”

“The notice essential to due course and process of law is the original notice whereby the court acquires jurisdiction, and is not notice of the time when jurisdiction, already completely vested, will be exercised.”

PETERS, P. J. By this proceeding in prohibition the petitioner seeks to prevent the trial court from hearing a motion for an order directing the court clerk to issue an execution to enforce the provisions of a certain judgment against petitioner on the ground that the judgment is void.

The pertinent dates are as follows :

December 16, 1933: Complaint filed and summons issued in an action for services rendered, brought by Teresa M. Smith in Santa Clara County against petitioner for $1,877 upon an open book account, and upon an account stated.

December 30, 1933: Petitioner was served in Los Angeles County with a copy of the complaint and summons.

March 16,1934: The default of petitioner was entered.

May 16, 1940: Judgment in favor of Smith and against petitioner for $1,877, plus interest and costs, entered by the Superior Court of Santa Clara County. The register of actions of that court indicates that a hearing was had on that day and the order for judgment was then filed. Attached to this exhibit is a certificate of the county clerk stating that: “On search being made for Minute entry of Superior Court Clerk of Department 2, on May 16, 1934 [sic 1940] of the Court Order for Judgment in the entitled action ... it appears that the entry was inadvertently overlooked as no such entry could be found."' At any rate, petitioner alleges, [348]and the allegation is admitted by the demurrer, that no notice of the May 16, 1940, hearing was given to him.

July 25,1949: Smith gave notice to petitioner that on August 19, 1949, she would move the court to issue an execution on the May 16, 1940, judgment.

August 12, 1949: Petitioner notified Smith that on August 19, 1949, he would move the court for an order dismissing the action on the ground that Smith had failed to have judgment entered within three years of service of summons as required by section 581a of the Code of Civil Procedure.

August 19, 1949: Hearing of petitioner’s motion.

August 29, 1949: Petitioner’s motion denied and Smith’s motion set for hearing September 12, 1949.

September 8, 1949: This petition for prohibition filed and an alternative writ issued.

Taintor v. Superior Court

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