Hall v. Napa County Title Co.

SCHOTTKY, J. Defendant above named has appealed from the judgment in the instant action which action is the aftermath of an unusual sequence of events.

On October 15, 1948, Edward L. Mashburn and plaintiff above-named, who were formerly husband and wife, entered into an agreement in writing providing for the sale of their property. After the sale of said property Mr. York, who was then the attorney for both husband and wife, deposited the [521]proceeds of the sale with the Napa County Title Company on April 27, 1950, with instructions which contained the following : “Pay on order of Alice N. Mashhurn and Edward L. Mashhurn. ’ ’ The parties were unable to agree on a division of the proceeds and Edward commenced an action against Alice and the title company for a partition and accounting.

Service was made upon Alice by publication. The order for publication of summons found that respondent herein was concealing herself to avoid service of summons. She was never personally served in that action. Her default and the default of the title company were entered, and a judgment was entered on June 22, 1951, decreeing Edward to be the owner of $7,548.38 out of the sum of $12,654.15 in possession of the title company. The balance was made payable to Alice subject to assignments previously made by her; and the Napa County Title Company was ordered by said judgment to pay over to said plaintiff and defendant the sums awarded to them by said judgment.

On June 26, 1951, the title company paid out all moneys remaining in its possession with the exception of $2,387.87 retained for payment to plaintiff above named, and on June 27, 1951, mailed a letter to her notifying her of the entry and terms of the judgment. Said letter was sent by her to Mr. York who thereupon contacted the title company and instructed them not to disburse any of the money deposited with the title company on the account of the Mashburns. However, the title company, in reliance upon the judgment entered by default, had already disbursed practically all of the funds with the exception of $2,387.87.

On August 20, 1951, defendant, Alice Mashhurn, filed her motion to open her default and vacate the judgment and for an order permitting her to file her answer. The grounds of her motion were that said default judgment was entered on service of process by publication within one year, and that said judgment was taken against her through her mistake, inadvertence, surprise and excusable neglect. Notice of motion was served on Edward L. Mashhurn, plaintiff in said action, but no notice was given to the title company which was also a defendant in said action.