DocketNumber: L. A. No. 4782.
Citation Numbers: 182 P. 27, 180 Cal. 523
Judges: Lawlor
Filed Date: 6/9/1919
Status: Precedential
Modified Date: 10/19/2024
This is an appeal by the plaintiff from an order setting aside a judgment entered by default against L.B. French. The plaintiff agreed to purchase and L.B. French agreed to sell a certain tract of land in Los Angeles County. French covenanted to pipe water to the said land for domestic and irrigating purposes. This, it was alleged, he failed to do, and upon the breach of the covenant this action was brought by the plaintiff to recover damages in the sum of five thousand eight hundred dollars, together with costs.
On July 17, 1915, L.B. French (who died on May 17, 1916) was personally served with complaint and summons. On July 28, 1915, at 10 A. M., upon the failure of the defendant to answer, and the time within which to answer having expired, the clerk of the court, upon the application of the plaintiff, entered the default of the defendant, and on August 2, 1915, entered judgment in accordance with the prayer of the complaint. Between the entry of the default and the entry of the judgment, namely, on July 28, 1915, at about 11 A. M., the defendant served and filed in the clerk's office a demurrer and notice of motion to strike out.
On March 14, 1916, the defendant served and filed his notice of motion to vacate the default and to set aside the judgment. The court refused to vacate the default but did set aside the judgment upon the ground that the "clerk did not have any jurisdiction on the second day of August, 1915, to enter the said judgment because of the fact that said demurrer and said motion to strike out were on file in said action and undisposed of."
1. Respondent contends that the judgment is void because the clerk had no authority to enter it. Subdivision 1 of section
This being an action based on contract for the recovery of damages only, the case comes clearly within the provisions of this subdivision. The respondent does not question this, but admitting that the default was entered before his demurrer and motion to strike out were filed, he urges that the filing of the demurrer and motion to strike out raised a question of law for the court to decide and that the clerk, therefore, had no authority to enter judgment. [1] This contention is without merit. [2] In the matter of entering judgment the clerk had no discretion, but having entered the default he was bound under the said subdivision to enter judgment "immediately thereafter." The fact that he did not enter judgment "immediately thereafter" in no way prejudiced the rights of the plaintiff and conferred no right on the defendant, whose default had been regularly entered. (Edwards v. Hellings,
2. The respondent contends further that the judgment is void because the complaint fails to state a cause of action. [4] It is well established that a judgment is not void if the court has jurisdiction of the parties and of the subject matter, irrespective of whether or not the complaint states a cause of action so long as it apprises the defendant of the nature of the plaintiff's demand. (Blondeau v. Snyder,
[5] 3. The respondent makes a further objection that no judgment can be entered or reinstated in this case because the plaintiff's claim was not presented to the estate for allowance. It is his position that the judgment having been set aside, the action is still pending within the meaning of section
The order appealed from is reversed, with directions, to the court to re-enter the judgment.
*Page 527Shaw, J., and Olney, J., concurred.
Molen v. Friedman , 75 Cal. Rptr. 2d 651 ( 1998 )
Molen v. Friedman , 64 Cal. App. 4th 1149 ( 1998 )
Remainders, Inc. v. Superior Court , 13 Cal. Rptr. 221 ( 1961 )
Gilman v. Superior Court , 86 Cal. App. 259 ( 1927 )
United States National Bank v. Humphrey , 49 Idaho 363 ( 1930 )
Kingsbury v. Brown , 60 Idaho 464 ( 1939 )
Reed v. Cortez , 88 Cal. App. 2d 416 ( 1948 )
Lynch v. Bencini , 17 Cal. 2d 521 ( 1941 )
Holsinger v. Holsinger , 95 Cal. App. 2d 835 ( 1950 )
Estate of Keet , 15 Cal. 2d 328 ( 1940 )
Moran v. Superior Court , 35 Cal. App. 2d 629 ( 1939 )