Bettencourt v. Superior Court

On March 13, 1916, in an action for divorce wherein petitioner Joe A. Bettencourt was plaintiff and Antonia de Gelloria Bettencourt was defendant, and wherein the default of the defendant had been duly entered, an interlocutory judgment of divorce was duly filed and entered. In August, 1916, the defendant served and filed a notice of motion, together with affidavits and a copy of her proposed answer, stating in the notice that on September 11, 1916, she would move the court to vacate and set aside her default and the said interlocutory judgment, upon the ground that said default and interlocutory judgment of divorce were taken, made, and entered through the mistake, inadvertence, surprise, and excusable neglect of the defendant. The minutes of the superior court for September 11, 1916, show the following proceeding in said action: “The motion to vacate

The order setting aside the interlocutory decree was concerning a matter arising under section 473 of the Code of Civil Procedure, which authorizes the court to relieve a party 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.” Petitioner claims that from the foregoing record it appears that the application for relief was not made within six months after the thirteenth day of March, 1916, at which time the six-months’ period mentioned in section 473 began to run; and therefore that the superior court was without jurisdiction to make the order of September 16th. If the record of proceedings had on September 11th is sufficient to support the inference that the application for relief was made on the eleventh day of September, then the fact that the continuance was had and the order was not made until September 16th would not impair the jurisdiction of the court. Notice that an application or motion will be made to the court at a specified time, even though such notice be filed, as well as served, is not itself an application or motion. And it has been held that where notice of motionefor relief under section 473 was served and filed prior to the expiration of the six-months’ period, and the notice gave warning that the motion would be made on the stated day, which was after the six months expired, the application was not made in time and the court was not authorized

The principal difficulty with this case arises from the absence of a specific statement in the record that on September 11th the motion or application was made. In Herrlich v. McDonald, 80 Cal. 472 , [ 29 Pac. 299 ], the court was considering an appeal from an order refusing to recall an execution. Notice had been given that the motion would be made on a certain day. The only thing tending to show that a motion was made was a récital in the order appealed from that “the cause came on to be heard this day on defendant’s motion to vacate and set aside writ of execution.” The supreme court held that the record was insufficient to show that a motion was actually made. But in Townsend v. Parker, 21 Cal. App. 317 , [ 131 Pac. 766 ], the first district court of appeal reached a different conclusion upon somewhat similar facts. The case was one referring to an order of the justice’s court setting aside a judgment, and the question was whether the application was made within due time under section 859 of the Code of Civil Procedure, requiring that the application for such relief be made within ten days after notice of entry of judgment. On January 6, 1912, notice of motion was given that the stated motion would be made on Monday, January 8th, which was the last day of the time within which the application might be made. The justice’s docket, as shown by the return to the writ of review, showed that on January 8th at the hour mentioned in the notice, attorneys for the plaintiff and attorneys for the defendant appeared “for the hearing upon the motion to vacate and set aside the judgment of default made and entered herein. ’ ’ But at that time, upon request of the plaintiff’s attorney and consent of defendant’s attorney, the hearing of said motion was continued until January 10th, which was beyond the time limited for making such an application under section 859. It was held by the district court of appeal that the foregoing facts stated in the docket of the justice were sufficient to make it appear that the defendant did move on the eighth day of January, and that the application was made within time. The court thereupon affirmed the judgment of the superior court affirming and approving the order of the justice’s court. A petition for rehearing by the supreme court after judgment in the district court of appeal was denied.

The order is affirmed.

James, J., and Shaw, J., concurred.