PHILLIPS ET AL v. TRUSHEIM ET AL (1944)

This is an appeal from an order vacating a judgment as to one of the defendants and dismissing the action as to him. The plaintiffs owned 80 acres of land in San Diego County. The defendant Trusheim owned 80 acres adjoining this property on the east, and the defendants Caldwell owned 80 acres adjoining it on the west. While this action was quiet title in form its purpose was to determine the east and west boundaries of plaintiffs' property.

The complaint was filed on December 10, 1938. The defendants Caldwell filed an answer on December 15, 1938. The default of defendant Trusheim was entered on January 6, 1939. For some reason another return of service on him was made and his default again entered on March 30, 1939. The defendant Trusheim was adjudged an incompetent and a guardian appointed on February 2, 1940. On June 28, 1940, there was filed on his behalf a notice of motion to vacate his default based upon the grounds named in section 473, C.C.P. This was accompanied by a proposed answer. Not only was this filed more than six months after the entry of the default, but the motion was never made in court and no permission was ever obtained to file the proposed answer.

Nothing having been done in the meantime a judgment in favor of the plaintiffs was entered on September 25, 1942, based upon a written stipulation between the plaintiffs and the defendants Caldwell, and upon the default of the defendant Trusheim. The judgment defined the boundaries of the plaintiffs' property and quieted title against all of the defendants as to the property so defined and described. A writ of possession was then issued against the defendant Trusheim and served.

On November 12, 1942, the defendant Trusheim filed notice of a motion to recall and quash the writ of possession, to vacate the judgment that had been entered and to dismiss the action as to him. The hearing of this motion was continued from time to time. An amended notice of motion was filed setting forth as additional grounds therefor that the court had neither power nor jurisdiction to enter a judgment against Trusheim at the time of its attempted entry, and that more than three years had then elapsed since the service of summons on him. The motion was finally heard on affidavits and on May 13, 1943, the court made and filed an order granting the motion, vacating the judgment as to the defendant Trusheim and dismissing the action as to him. This order was based upon findings that summons was served on Trusheim on March 12, 1939; that his default was entered on March 30, 1939; that no answer had been filed on his behalf; that the plaintiffs had failed to have a judgment entered within three years after the service of summons on him; and that the judgment was entered more than three years after the service of summons on this defendant. From the order so made the plaintiffs have appealed.

The appellants contend that this motion could not have been granted under section 473, C.C.P., since it was made too late and was not accompanied by a proposed answer, that the trial court had jurisdiction to enter judgment against a defaulting defendant more than three years after he was served with a summons, and that since the court had such power any errors which appear could not be attacked by a motion to set aside a judgment made on the ground that the court lacked jurisdiction to enter the judgment. In making the latter contention the appellants ignore the fact that the order in question was not based upon any lack of jurisdiction in entering the judgment, but was based on the ground that the judgment was entered after three years had elapsed from the time summons was served on the respondent.

It may be conceded that this motion could not have been granted under section 473, C.C.P. Hunt, Mirk & Co., Inc., v. Hesperides Min. Co., 200 Cal. 382, 253 P. 317. It may be further conceded, for the purposes of this opinion, that a trial court has jurisdiction to enter such a judgment after the lapse of three years from the date summons was served. See, Lynch v. Bencini, 17 Cal.2d 521, 110 P.2d 662. But it is well settled that a seasonable motion to vacate a judgment is a direct attack upon the judgment. City of Los Angeles v. Glassell, 203 Cal. 44, 262 P. 1084; Shelley v. Casa De Oro, Ltd., 133 Cal.App. 720, 24 P.2d 900. While, ordinarily, errors of law are to be corrected on appeal from the judgment and the court having once entered its judgment may not set aside or amend it for the purpose of correcting judicial error (Stevens v. Superior Court, 7 Cal.2d 110, 59 P.2d 988), a distinction or exception is made under some circumstances as, for instance, where the judgment has been entered in disregard of a statute which forbade its entry. This is in the nature of an inadvertence, rather than a judicial error. Where a judgment is erroneous in the sense that it ought not to have been entered at all against a particular party or under certain circumstances it may be set aside on a motion timely made for that purpose. Shelley v. Casa De Oro, Ltd., 133 Cal.App. 720, 24 P.2d 900; Lynch v. Bencini, 17 Cal.2d 521, 110 P.2d 662.

The last paragraph of section 581a, C.C.P., provides that an action must be dismissed if summons has been served and no answer has been filed, where the plaintiff has failed to have judgment entered within three years after the service of summons. In discussing that provision and the duty there imposed upon a plaintiff the court said in Lynch v. Bencini, 17 Cal.2d 521, 110 P.2d 662, 668:

“When the plaintiff fails to perform that duty his rights are affected and a benefit is conferred upon the defendant by the provision that the court must dismiss the action. The duty thus imposed on the court, however, is not confined to where such action is requested by the defendant but is one which the court is required to exercise ‘on its own motion.’ This statutory provision is clearly intended to apply to cases where the defendant is not yet taking any steps for his own protection. Clearly, under the statute, it is error for the court to fail to perform this duty directly imposed upon it. While a judgment so entered may not be void for lack of jurisdiction the court's error in failing to perform that duty is one which may be corrected on appeal from the judgment, if taken within the statutory time. The duties and rights of the parties are still affected by the last paragraph of section 581a and the judgment itself is still subject to review on a direct and timely appeal. Assuming that the clerk had here a duty to perform in his ministerial capacity, and that he had no power to pass upon the effect of the last paragraph of section 581a, the court had both the power and the duty to do so, the matter was directly presented to it on timely motions after judgment, and the matter is now properly here for review. Under such circumstances the error may be corrected and the judgment, entered and allowed to stand in disregard of the provisions of section 581a, should be reversed.”

The appellants argue that the principles of the case just cited are not applicable here since in that case there was an appeal from the judgment. However, that case also involved an order refusing to set aside the judgment and that order was also reversed. In effect, it is argued that the respondent's rights here were limited to an appeal from the judgment or to a motion for a new trial. There could have been no motion for a new trial since no trial was had and the motion to set aside the judgment was an appropriate remedy which was available to the respondent.

The motion here made was a direct attack upon the judgment, made well within the time allowed for an appeal and at a time when the court still had jurisdiction to act with reference to the judgment which had been improperly entered in disregard of a specific duty imposed by the statute. The court acted within its authority and in accordance with the duty placed upon it by the statute in the very matter which we are asked to review. We know of neither principle nor authority which compels an aggrieved party, under such circumstances as here appear, to refrain from seeking relief in the court where a judgment has been improperly entered and to confine himself to an appeal. Such a litigant should not be penalized because he has successfully sought relief in the trial court and thereby made unnecessary an appeal from the original judgment.

The appellants further argue that the last paragraph of section 581a, C.C.P., seems to conflict with section 579, C.C.P., which provides that the court may, in its discretion, render judgment against one of several defendants, leaving the action to proceed against the others whenever a several judgment is proper. It is then argued that, in order to give full effect to section 579, C.C.P., the last paragraph of section 581a should be interpreted as meaning that such an action should be dismissed “only in a case where no defendant has filed an answer.” To so hold would be to put something into that statute which was not placed there by the legislature. Under the terms of that statute the right there created in favor of a party who has not appeared is made available to “any party interested,” and where there are several defendants the language used would seem to make the provision applicable to any defendants who did not answer and to require a dismissal only as to such defendants.

It is further argued in this connection that the last paragraph of section 581a does not deprive the court of the discretion, conferred by section 579, to hold in abeyance the entry of judgment against a non–answering defendant until the action has been decided as to an answering defendant. If we assume this to be true, no such a situation here appears. If the appellants had attempted to have judgment entered, against the respondent, before the three years had expired and the court had denied their application on the ground that a several judgment was not proper, a different question might have been presented calling for a consideration of the contention thus advanced. In the instant case, the court did not hold the matter in abeyance, no discretion on the part of the trial court was interfered with, nothing occurred which prevented the plaintiffs from carrying out the duty imposed upon them by section 581a, and whatever else it does or does not do section 579 does not confer any discretion on the appellants, as plaintiffs in the action, which would authorize them to disregard section 581a.

The appellants dwell at some length upon the equitable considerations involved and accuse the respondent of inconsistency and of seeking to avoid a trial on the merits. It does appear that with respect to the respondent this case should be tried on the merits, a result which would not follow if the appellants were to prevail. While the first application for relief under section 473 C.C.P., was made too late, the grounds and reasons given were such that the application could hardly have been denied if made on time. The appellants state that they are now at a disadvantage because they would not have agreed to the stipulated judgment as between them and the Caldwells had they not thought they were also getting a valid judgment against this respondent. The issues as to the two boundaries were not necessarily connected although the establishment of the correct boundary on one side might well make it easier to establish the correct boundary on the other side. If the true boundary between the appellants' land and that of the Caldwells was correctly established by the stipulated judgment between those parties, the appellants will in no way be prejudiced in any subsequent action which they may bring to establish the boundary between their land and that of the respondent. On the other hand, if that boundary as fixed by the stipulation was not the true boundary on that side the agreement thereon ought not to affect the true boundary on the respondent's side and should not bind the respondent, who was not a party to that stipulation. If the equities were to be considered at all they tend to support the order as made by the trial court rather than the original judgment as entered.

The order appealed from is affirmed.

BARNARD, Presiding Justice.

MARKS and GRIFFIN, JJ., concur.