Dyerville Mfg. Co. v. Heller

Fitzgerald, J.

Appeal from an order modifying the judgment given for plaintiff in the above-entitled cause.

The action was for an injunction to restrain the defendants from infringing its trademark and for damages.

The judgment, which was entered upon a stipulation between the parties, was filed August 7, 1891, and entered April 26, 1892. The proceedings for the modification thereof were instituted December 9, 1892, and the order granting the motion for that,purpose was thereafter made, on the ground that “ the decree awarded relief in excess of the stipulation and the prayer of the complaint, and had been inadvertently entered.”

The question to be determined on this appeal involves-the power of the court to make the order.

Section 473 of the Code of Civil Procedure provides,, among other things, that the court may, “ upon such terms as may be just, relieve a party, or his legal representative, from a judgment, order, or other proceeding taken against him through his mistake, inadvertence, surprise, or excusable neglect, provided, that application therefor be made within a reasonable time, but in no-case exceeding six months after such judgment, order, or proceeding was taken.”

The grounds upon which the application was made were excusable neglect and fraud practiced upon the court by plaintiff’s former counsel by procuring the judgment to be given in excess of the stipulation.

Tiie grounds upon which the modification was made by the court were that the judgment exceeded the stipulation, and that it had been “inadvertently entered.”

Under the provisions of the foregoing section it is clear that the court had no jurisdiction to make the order appealed from, as the proceedings upon which it is based were not commenced until nearly eight months after the judgment was entered.

But it is claimed that, as there was matter of record by which the amendment could be made, the court had power to make it, notwithstanding the rule as to time laid down in the section of the code referred to. This claim, in so far as it applies to clerical misprisions, is undoubtedly correct. But where the judgment is entered as rendered, but rendered in excess of the stipulation, as is claimed to be the case here, such judgment is erroneous, and the error one of law committed at the trial, the remedy for which is either by motion for a new trial or by appeal. (Egan v. Egan, 90 Cal. 15.)

It is further claimed that, as the judgment was procured by fraud practiced by plaintiff’s attorney upon the court, the provisions of section 473 of the Code of Civil Procedure, above quoted, do not apply. This point was expressly decided against respondents’ claim in the case of Wharton v. Harlan, 68 Cal. 422. In that case the court, in discussing this question, uses the following language: “The notice of motion was filed and served more than six months after the judgment was entered. As an application under section 473 of the Code of Civil Procedure it was too late. The application for summary relief by motion must, by the terms of that section, be made within the six months. The application must be made within six months, even though the mistake, inadvertence, surprise, or excusable neglect has been caused or brought about by fraud practiced by the party in whose favor the judgment or proceeding was taken. After that period the question of ‘ mistake/ etc. (whatever the remedy in equity), cannot be tried by affidavit.”

It therefore follows that the order appealed from should be reversed, as the court was without jurisdiction to make it.

So ordered.

De Haven, J., and McFarland, J., concurred.