Anderson v. Cazel

[L. A. No. 23937. In Bank. Feb. 3, 1956.]

NELL ANDERSON, Appellant, v. ERNEST C. CAZEL, Respondent.

COUNSEL

Robert M. Fisk and Richard P. B. Tyson for Appellant.

Spray, Gould & Bowers and Robert E. Ford for Respondent.

OPINION OF THE COURT

Memorandum

SPENCE, J.

Plaintiff appeals from an order setting aside the default of defendant Ernest C. Cazel and the judgment entered thereon. The other defendants are not involved on this appeal. As in the case of Solot v. Linch, ante, p. 99 [292 P.2d 887], this case involves the question concerning the controlling statute governing a nonresident motorist's right to relief from a default taken against him. (Code Civ. Proc., §§ 473 or 473a.)

Plaintiff's action was commenced against respondent and others on June 17, 1953, and within the following three weeks the prescribed service on respondent was completed pursuant to section 404 of the Vehicle Code. Respondent's default was entered on August 24, 1953, and on May 10, 1954, nunc pro tunc as of May 7, the court entered judgment thereon. On April 29, 1955, respondent filed his notice of motion to set aside the default and vacate the judgment rendered thereon; hearing was had on May 6, and the order granting respondent's motion was made on May 17, 1955, all of which was well beyond six months after the entry of his default. (Code Civ. Proc., § 473.) Upon the authority of Solot v. Linch, ante, p. 99 [292 P.2d 887], and for the reasons therein stated, the court was without jurisdiction to set aside the default.

The order is reversed.

Gibson, C.J., Shenk, J., Carter, J., Traynor, J., Schauer, J., and McComb, J., concurred.