People v. One 1948 Oldsmobile

DOOLING, J. The State appeals from an order granting respondent’s motion to set aside a default judgment.

On March 27, 1956, the State commenced proceedings to [379]forfeit an automobile belonging to respondent for illegal transportation of narcotics. Respondent was given the required notice of this proceeding and, having failed to file an answer within 20 days, on April 27, 1956, a decree of forfeiture was made and entered pursuant to section 11616, Health and Safety Code.

On June 1, 1956, respondent filed a motion to vacate this judgment pursuant to Code of Civil Procedure, section 473. The motion was supported by the verified answer of respondent and an affidavit of his attorney. The affidavit recited that during all of the time in question respondent was confined in the connty jail; that the papers in this proceeding were turned over to affiant “but due to the fact that preparations were being made by your affiant to defend a criminal action filed against defendant, and that trial of said action took place on April 18th and 19th, your affiant did not have time to prepare the answer in the above entitled action within the statutory time limit”; that the jury on this trial acquitted defendant on two counts and disagreed on a third and that May 14 was set for the retrial of this third count; that affiant was and still is occupied in preparation for this trial; that owing to the fact that the answer in this proceeding had to be personally verified by respondent affiant had to make an appointment with a notary to visit respondent in the county jail; that due to pressure of office business, and the fact that respondent was at all times in jail, affiant was not able to file the answer in the statutory time; and that the copy of the notice served on respondent did not contain the number of the superior court action and the county clerk would not accept the answer for filing without the number affixed thereto.

The sections of the Health and Safety Code applicable here are:

Section 11614: “Within twenty days after the mailing or publication of the notice, the owner of the vehicle may file a verified answer to the fact of the use of the vehicle alleged in the notice of seizure and of the intended forfeiture proceeding. ’ ’

Section 11615: “No extensions of time shall be granted for the purpose of filing the answer.”

Section 11616: “If at the end of twenty days after the notice has been mailed or published there is no verified answer on file, the court, upon motion, shall declare the vehicle forfeited to the State.”