Keown v. Trudo

This is an appeal from an order refusing to set aside a default and also from the judgment entered pursuant to such default.

The default arose by reason of the failure of appellant to file a third amended complaint within the time allowed by the trial court for such filing, after demurrer was sustained to the second amended complaint. The order sustaining the demurrer was entered April 14, 1919, and appellant was thereupon, and on the same day, allowed fifteen days within which to amend. No amended pleading -having been filed by him, an order to enter his default for failure to amend within time was filed November 12, 1919, six and one-half months after the expiration of the time within which he was permitted to amend under the order of the court made in that behalf. On April 9, 1923, three years and five months after the entry of the default, appellant filed his notice of motion to set it aside. [1] The notice specified no grounds upon which the motion was to be made and" was therefore insufficient (Code Civ. Proc., sec. 1010), but as this point is not pressed by respondent we shall dispose of the appeal from the order refusing to set aside the default upon other considerations. The grounds upon which appellant sought to set aside the default are indicated in an affidavit filed with his notice of motion to set aside and are elaborated in his brief on appeal. It is averred in the affidavit that appellant was not present in court, either in person or by counsel, at the hearing on the demurrer to the second amended complaint; that he was “absent in the east” at the time and that “when notice of the action on the demurrer reached the plaintiff in Massachusetts it was too late to amend and have his amended complaint filed even if he wished to do so”; that he prosecuted an appeal from the order sustaining the demurrer, but that in his absence and in the absence of counsel for him the appeal was dismissed on the ground, as he is informed and believes, that the' appeal was premature, no judgment having been entered on the ruling on demurrer; that he “thereafter had no knowledge, actual or constructive of any action being taken in the case until on or about November 9, 1922, which was the

[2] The substance of appellant’s affidavit, stating as it does, both matter of fact and matter of argument, is set forth so fully for the reason that the document carries within itself ample and apparent refutation of appellant’s contention. [3] Passing by, however, the .manifest inaccuracies and contradictions of the paper without further comment, we must also say that the motion presented by appellant to the trial court was not within the terms of section 473 of the Code of Civil Procedure, as the notice of

Upon the appeal from the judgment appellant attempts to present the question whether the demurrer to the second amended complaint was properly sustained, but that branch of the appeal is abortive. The judgment was entered November 17, 1919. The notice of appeal was filed June 7, 1923. [4] No right of appeal from the judgment existed after the expiration of the sixty days following its. entry (Code Civ. Proc., see. 939).

As stated in the affidavit of appellant, the substance of which is above set forth, he appealed long ago from the order sustaining the demurrer to his second amended complaint. The appeal was dismissed on the ground that no appeal lies from such an order. The judgment from which the present appeal is prosecuted was entered after the filing of the notice of appeal from the order on demurrer and before that appeal was dismissed. It is now contended that the trial court had no jurisdiction to enter judgment pending the appeal from the order on demurrer. For the reasons státed in the last preceding paragraph the point cannot be considered.

The fact that the present appeal is futile cannot be laid altogether to the ignorance of appellant. He is an attorney at law. Also, as shown by an affidavit in the record, he once wrote a letter to respondent’s counsel in which he said concerning the present litigation: “Nearly two years ago I told a Mass, judge that this case would take ten years. I have not been at it quite two as yet.” Appellant does not deny the writing of this letter. [5] Under all the circumstances shown by the record a fine should be imposed upon appellant for prosecuting a frivolous appeal. Under that infliction he may not be unduly exuberant in his joy over the fact that the action, his own child, has survived nearly

Judgment and order affirmed. Appellant is fined $250 for the prosecution of a frivolous appeal.

Finlayson, P. J., and Craig, J., concurred.