Carpenter v. Mohammed

California Court of Appeal Jun 1, 1964 No. Civ. No. 7279Published

Before: Brown, Gerald

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Holding. The court held that the defendant made a general appearance by seeking relief beyond a jurisdictional challenge, and that the trial court did not abuse its discretion in denying the motion to set aside the default judgment.

Issues

Whether the defendant's actions constituted a general appearance, thereby waiving a claim of lack of personal jurisdiction.
Whether the trial court abused its discretion in denying the motion to set aside the default judgment under Code of Civil Procedure section 473.

Disposition. affirmed

Quotations verified verbatim against the opinion

“These acts are sufficient to constitute a general appearance and dispose of the claim of lack of personal jurisdiction.”

“An order denying a motion to vacate a default judgment will not be reversed in the absence of a clear showing of an abuse of discretion by the trial court.”

“The record reveals substantial evidence to sustain the position taken by the trial court in denying defendant’s motion to set aside the default.”

BROWN (Gerald), J. This is an appeal from an order denying defendant’s motion to set aside a default judgment.

Defendant Shah Mohammed, a citizen and resident of West Pakistan, inherited an undivided one-half interest in' certain real property in Imperial County. In 1960 he entered into negotiations for the sale of his interest to the plaintiff Marvin W. Carpenter. In a letter dated August 6, 1960, defendant refused plaintiff’s offer of $8,750, and made a counteroffer of $11,000. The letter states, “If my this offer [$11,000] is acceptable to you, kindly send the necessary papers duly completed for my signatures etc.” The offer was accepted by the plaintiff on October 5, 1960. In addition to the $11,000 plaintiff was to pay all escrow charges (approximately $500, and all back taxes (approximately $3,000). The escrow papers were mailed to defendant, but he did not reply.

Suit was filed March 3, 1961, seeking damages, or in the alternative, specific performance. The action for damages was abandoned. A copy of the complaint and summons and a letter explaining the nature of the action were sent to the defendant. In June 1961, defendant replied that he had made the offer, but had not received the acceptance, and was referring the matter to the West Pakistanian Embassy and U.S. authorities. In reply plaintiff sent new escrow instructions and a deed.

The summons was published in an Imperial Valley newspaper under a court order dated August 25, 1961. Default was entered on May 2, 1962. A hearing was held on May 24, 1962, and judgment was entered July 25, 1962—16 months after the complaint had been filed.

A motion to set aside the judgment on the ground of excusable neglect and inadvertence, filed September 4, 1962, and amended October 9,1962, was denied November 21,1962.

The first contention of the defendant is that the original summons was not returned, hence the court lacked jurisdiction to render a personal judgment against him. It is well settled if a judgment should not have been entered at all, it may be set aside under proper circumstances. (Greif v. Dullea, 66 Cal.App.2d 986, 993 [153 P.2d 581]; Lynch v. Bencini, 17 Cal.2d 521 [110 P.2d 662].) It is also well settled that inclusion of any ground inconsistent with the sole claim that the judgment is void for lack of personal jurisdiction is sufficient to convert a special appearance into a general appearance. (Shelley v. Casa De Oro, Ltd., 133 [586]

Carpenter v. Mohammed

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