Batchelor v. Finn

Presented together in this court are appeals from orders setting aside the respective judgments in the above entitled actions. One of those judgments awards plaintiff Johnson (assignee of George E. Batchelor) recovery of $17,-671.52 from defendants Finn. The other quiets in plaintiff George E. Batchelor full title to a certain aeroplane designated as a Curtiss C-46, bearing Aircraft Number 42-96563 and Civil Aeronautics Administration registration Number N 111 E. The Johnson judgment was rendered after a hearing upon the date set for trial, of which trial date defendants had due notice; they did not appear at the trial. The Batchelor judgment was rendered pursuant to a motion for judgment on the pleadings. Both actions stem from a contract for the purchase by Batchelor from the Finns of a half interest in the said aeroplane. As the trial judge’s ruling in each case was based primarily upon fraud on the court and on the defendants

Prior to November, 1951, the Finns purchased said plane from Vineland School District, of Kern County. The record before us leaves doubt as to whether the Finns actually had title on November 24,1951, at which time they sold a one-half interest in the said plane to plaintiff George B. Batchelor upon the terms of a letter agreement bearing that date. He was to pay and did pay to the sellers forthwith the sum of $10,000 “for and in consideration of said % interest”; the cheek representing the $10,000 payment, made by Batchelor’s attorney, bore this notation: “Payment per ltr. of 11/24/51 for aeet. George B. Batchelor.” The letter agreement was addressed to Batchelor and said that title would be recorded with the Civil Aeronautics Administration “showing title to be y2 in you [Batchelor] and % in us.” This was done. It was further specified “that this sale is contingent upon the following:” a. Consummation of an agreement with Vineland School District to release said C-46 Number 4296563 in exchange for an equivalent C-46 under the terms of an agreement of February, 1951, between Finns and the district. The letter also says: “5. You agree that you will furnish y2 of the purchase price of said equivalent aircraft, mentioned in Paragraph 4a above, which price is to be mutually agreed between us. 6. In event that we fail to acquire title to the above aircraft within 6 months from this date, we promise to pay to your order said $10,000.00 on demand. 7. We shall use the above $10,000.00 towards the purchase of a certain Douglas C-47 school aircraft now located at ¡Roosevelt Field, N. Y., and upon your payment to us of y2 of the price of said aircraft (total price of said aircraft not to exceed $20,500.00), we shall give you an undivided % interest by bill of sale in said aircraft.” The Finns were unable to acquire the C-47 mentioned in paragraph 7 just quoted, and hence no advance on that account was made by Batchelor.

Difficulties and litigation arose between the school district and the Finns. Charles Finn at the trial denied that he and his brother had given the district a bill of sale reconveying to it the Curtiss C-46, but it later appeared from his testimony that a sealed envelope containing such a bill of sale was delivered by the Finns to the superintendent of the Vineland school, which, according to the witness, was to be held as security for performance of the agreement. It further developed that this instrument was made on October 22, 1951,

Mr. Batchelor was the only witness. He testified that Johnson was his assignee for collection only, that the $10,000 was paid to the Finns for the purchase of a C-47 aeroplane which they represented they could purchase for $20,000 and that his $10,000 represented half of that price; that they were unable to buy the plane and spent the money in their own way, repaying none of it to him; that they were to buy that C-47 and he was to own half of it. The judge made an earnest effort to learn all the pertinent facts. “Q. What was that original deal, the whole deal? A. I have told you the whole deal, sir. Q. It was to be how much that you were going to advance? A. I was only supposed to advance $10,-000.00. They thought they could buy the airplane for $10,-000.00. However, they said that in no event would it be over $20,000.00. They tried to buy the airplane, but they could never buy it. It was sold to someone else.” The $10,000 check was offered in evidence, bearing the explanation previously quoted herein, but no mention was made of the written agreement of November 24, 1951 (the letter) and it was not produced. The effect of the testimony was an agreement upon the terms just mentioned. Had the writing been disclosed it would have been immediately apparent that the $10,000 was the consideration for the purchase of a half interest in the Curtiss C-46 which the Finns had purchased or arranged to purchase from the Vineland School District. Batchelor was to furnish half the purchase price of the C-47, not exceeding $20,500, and to have a half interest therein. At least that seems to be a correct interpretation of the agreement and the trial judge was entitled to the information so that he could form his own judgment upon the matter. The

The matter was left to the trial judge at the default hearing upon a false basis, due to the express statements of the witness and his suppression of certain facts and a document material to the hearing. That this was a fraud upon the court was held below and the inference is a reasonable one. The circumstances point to a deliberate suppression and it seems that the trial judge would not have rendered the money judgment in question had he known the terms of the written agreement of November 24, 1951.

No contention seems to be made that the defendants did not owe the $1,000 item, but the $2,000 which was included in the amended complaint occupies a different category. Mr. Batchelor testified that it had been advanced to defendants on his behalf by his brother and charged to his account; that it had never been repaid to the witness and he could not reach his brother to learn whether it was ever repaid to him;

Returning to the $10,000 item it is elemental law that fraud may and usually must be proved circumstantially. (23 Cal.Jur.2d, § 80, p. 201.) The language of Parsons v. Weis, 144 Cal. 410 , 420 [ 77 P. 1007 ], is pertinent: “In the first place, the actual falsity of these averments was clearly shown, and appellant introduced no evidence, and made no effort whatever, to show that he did not know of such falsity.” Also, Gordon v. Gordon, 145 Cal.App.2d 231 , 235 [ 302 P.2d 355 ]: “When a trial judge in a proper proceeding vacates a judgment he has rendered in ignorance of material facts which he believes a party had a duty to disclose to him, and which, if known to him, would have caused him to refrain from ordering the judgment, we will not question his action. ’ ’ The fact that the fraud found to have been worked upon the court was intrinsic rather than extrinsic is immaterial upon a motion to vacate made within six months, as was the ease at bar. (Peterson v. Peterson, 135 Cal.App. 2d 812 , 816 [ 288 P.2d 171 ]; Security-First National Bank v. Hauer, 47 Cal.App.2d 302 , 306 [ 117 P.2d 952 ].)

This motion was originally set for a day falling within the six months period prescribed by section 473, Code of Civil Procedure, and the fact that the hearing was continued from time to time until after expiration of that period does not affect its timeliness. (Code Civ. Proc., § 1005.5; Brownell v. Superior Court, 157 Cal. 703 , 710 [ 109 P. 91 ]; Roseborough v. Campbell, 46 Cal.App.2d 257 , 261 [ 115 P.2d 839 ] ; 29 Cal. Jur.2d, § 149, p. 92.) Under section 1005.5, Code of Civil Procedure (enacted in 1953), the filing of the motion is deemed the making of the motion for all purposes (see 29 Cal.Jur.2d, § 149, p. 92; 3 Witkin, California Procedure, p. 2110, § 58; 2 id., pp. 1647-1648, §10). Hence the motion was timely without regard to application of section 473a.

The order vacating the default judgment in the Johnson case must be affirmed.

Batchelor v. Finn—No. 23151

In the quiet title action the Finns were served pursuant to order for publication of summons; personal delivery being made at Alexandria, Virginia, on October 17 and 18, 1956. The Finns in Washington, D.C. prepared an answer and forwarded it to Attorney Winkler in Los Angeles. It was not verified and Winkler told Mr. Blackman, plaintiff’s attorney, it would not be filed because not in proper form. Blackman gave him to and including the 20th of November, 1956, to do so. The answer not having been filed, plaintiff’s attorney caused defendants’ default to be entered early on November 21, 1956. In the afternoon of that day he learned from Winkler that he had obtained an order of court permitting the filing of the answer. It was filed on that same day, the 21st, after the default had been entered. Winkler paid the customary appearance fee on behalf of defendants. When plaintiff’s attorney learned of this filing and received a copy of the answer, which was on the 21st, he prepared on the same day a motion for judgment on the pleadings returnable on the

The ruling is based primarily upon the conclusion that there was a fraud upon the court. It was said by the trial judge in his memorandum; “Independently of said Motions, the Court determines that the want of disclosure as to entry of default in connection with said proceeding for Judgment on the Pleadings misled the Court as to its procedure, and was a constructive fraud upon it and on that ground the Court orders said judgment vacated.” Entering into this ruling is a procedural concept which we find to be erroneous, one turning upon sections 751 and 585, subdivision 3, Code of Civil Procedure.

The defendants Finn were in default and that fact was made a matter of record early on the morning of November 21, 1956, when plaintiff’s counsel caused the clerk to enter said default. Later on that same day counsel was served with an unverified answer signed by the Finns “in pro. per.” The attorney to whom the answer had been sent by the Finns had advised plaintiff’s attorney that he would not file it because it was not in proper shape. Mr. Blackman told him that he would take the Finns’ default, which he did on the following morning. The other attorney changed his mind, got an ex parte order from the presiding judge permitting the filing of the answer and did file it on the 21st.

While an answer filed after an entry of default has no immediate efficacy, it has potential value for plaintiff’s attorney may never raise the point and the delay may be waived. In this instance plaintiff’s attorney was presented with a dilemma. He could not reasonably expect to obtain from any judge a default judgment so long as the answer was on file, nor could he properly suppress that fact. An appropriate procedure would have been a motion to strike the answer. (Cf. Cuddahy v. Gragg, 46 Cal.App. 578 , 580 [ 189 P. 721 ] ; Buck v. Morrossis, 114 Cal.App.2d 461 , 464 [ 250 P.2d 270 ].) Equally

Attempted differentiation of this case upon the ground that section 750 “has been amended since to embrace actions under C.C.P. 738 and C.C.P. 751 now refers to all eases of service of summons as provided in § 750, which includes actions under C.C.P. 738” cannot succeed. It was correctly held in Alameda County Title Ins. Co. v. United States F. & G. Co., 121 Cal.App. 73 , 76 [ 8 P.2d 912 ], that sections 749 and 750 Code of Civil Procedure are not applicable to an action brought under 738.

Section 749 covers actions brought by a plaintiff who stands upon adverse possession for 20 years and seeks to quiet title to real property only. Such an action may include “all other persons unknown” who make claims to the property. It may be joined with one brought under section 738 but as to any known claimant “the proceedings in the action shall be governed by the provisions of said Section 738 and said sections

Section 751 (amended in 1943; the Los Angeles ease, supra, was decided in 1907) refers to actions brought under section 749 (this through its reference to section 750, the “preceding section,” which in turn rests on 749) and provides inter alia that the court “shall have jurisdiction to examine into and determine the legality of plaintiff’s title and of the title and claim of all the defendants and of all unknown persons, and to that end must not enter any judgment by default, but must in all cases require evidence of plaintiff’s title and possession, and hear such evidence as may be offered respecting the claims and title of any of the defendants and must thereafter direct judgment to be entered in accordance with the evidence and the law. . . . The remedy provided in this and the two preceding sections shall be construed as cumulative and not exclusive of any other remedy, form or right of action or proceeding allowed by law.” Inasmuch as section 749 specifically provides that the proceedings as to known defendants shall be governed by the provisions of section 738 and relevant sections, and section 751 says its procedure shall be cumulative only, it follows that its requirement of evidence of title does not apply to an action brought under 738, hence not to the one at bar. Let it be emphasized that section 749 and section 749.1 cover only actions involving title to real property and that section 750 and section 751 are intended merely as implementation of those sections, 749 and 749.1.

Reliance upon section 585, subdivision 3, Code of Civil Procedure, is equally unavailing. This subdivision relates to actions in which service of summons was made by publication. The right to a default judgment is expressly limited to motions made before the filing of any answer, demurrer or motion to strike: “In all actions where the service

In the present instance defendants’ answer was served and filed before plaintiff’s attorney applied for a default judgment; in fact it forestalled any such application. The filing of an answer is a general appearance (Code Civ. Proc., § 1014). At the time of its filing an appearance fee was paid. The appearance was “in pro. per.” and the answer had been prepared by the Finns and sent to the attorney who filed it. Personal service had been made upon them at Alexandria, Virginia; one was served on October 17, 1956, and the other on the following day. The default was entered and their answer filed on November 21, 1956, over a month after service; also after the time to plead had expired. This unverified pleading was so evasive as to admit all the material allegations of the complaint. We conclude, upon the authority of certain eases cited by appellant, that this personal knowledge of the action coupled with their general appearance removed the respondents from the class of persons to whom subdivision 3 of section 585 applies, brought them within the rationale of Los Angeles v. Los Angeles F. & M. Co., supra, 150 Cal. 647 , 649, and dispensed with the taking of evidence before entry of default judgment. A fortiori it precludes any valid objection to a motion for judgment on the pleadings.

Appellant relies in this behalf upon Zobel v. Zobel, 151 Cal. 98 [ 90 P. 191 ]. In that ease, an action to quiet title, defendant was personally served outside the state after order made for publication of summons. Defendant filed a demurrer and answer but did not serve them upon plaintiff’s attorney; upon his motion they were stricken, default entered and default decree granted. Thereafter defendant moved to vacate the judgment upon the ground that summons had not been personally served upon him. The order was granted, but the Supreme Court reversed. Referring to that portion of section 473, Code of Civil Procedure, which is now section 473a, the court said, at page 100: “The obvious and sole purpose of this particular provision of section 473 is to afford one, who has only constructive notice of a suit brought against him, an opportunity within the time designated, to invoke the

While the instant case involves the necessity of taking evidence pursuant to section 585, subdivision 3, upon the theory that defendants were served by publication, and the Zobel ease considered the language of present section 473a relating to time for appearance by one who has been served by publication, we see no difference in principle between the two situations.

Palmer v. Lantz, 215 Cal. 320 , 324 [ 9 P.2d 821 ] : “Service by publication and mailing a copy of the complaint and summons is not personal service [citation], however, and by reason of this fact appellant contends that under section 473 of the Code of Civil Procedure he is entitled to be relieved from the default as a matter of right without further showing than that he was not personally served. . . . But the provision is not designed to afford relief from a judgment which may be validly entered upon constructive service to those who with full knowledge of such service upon them, by reason of receipt of a copy of the summons and complaint through the mail, remain inactive. [Citations.] ”

Concerning section 473a, the Supreme Court said, in Solot v. Linch, 46 Cal.2d 99 , 105 [ 292 P.2d 887 ] : “Relief from default under section 473a of the Code of Civil Procedure is predicated upon the assumption that personal jurisdiction of the defendant has not been obtained. (Gardner v. Gardner,

The “doctrine of ‘special appearance’ applies by analogy to motion procedure.” (2 Witkin, California Procedure, p. 1642, § 4(c) ; and see 1 Witkin, California Procedure, p. 347, § 78.) Lacey v. Bertone, 33 Cal.2d 649 [ 203 P.2d 755 ], establishes this to be the law of California. That was a specific performance action wherein defendant obtained a preliminary injunction after trial and during submission of the cause. Plaintiff moved to dissolve the injunction because the order to show cause was not served five days before the hearing as required by section 1005, Code of Civil Procedure; but the notice of motion also specified that there was no sufficient ground for the injunction, that the extent of same was too great, and no written undertaking had been given as required by section 529, Code of Civil Procedure. The motion was denied. Upon appeal from the order granting the injunction and the order denying his motion to dissolve it, plaintiff Lacey contended “that the order granting the injunction should be reversed for failure to give proper notice of the hearing because the only notice was that served on him four days before the hearing, and that the order denying his motion to dissolve the injunction should be reversed for the same reason.” (P. 651.) The court said: “We are of the opinion, however, that he is in no position to raise these objections

‘ ‘ It is well settled that personal service of process may be waived and that where a person voluntarily appears generally he will be held to have waived the objection even though there was no service upon him. [Citations.] If he requests any relief that can be given only on the hypothesis that he is properly before the court, he thereby submits to the jurisdiction of the court and must necessarily be held to have waived the irregularity of his summons. This rule is ordinarily applied when the defect consists in a failure to serve summons or give the notice required to bring the party before the court originally. [Citations.] It likewise applies when there is a failure to give proper notice of subsequent proceedings to a party who has appeared in the action. [Citations.]

“In the present case, if Lacey wished to make a special appearance, he should have relied solely on the lack of proper notice as specified in the first ground of his motion. Instead, he also asked for other relief which could properly be given only if the court had jurisdiction of his person, namely, that there was no sufficient ground for the injunction and that it was too broad in scope.” (Pp. 651-652.) Also: “On Lacey’s motion to dissolve or modify the injunction he had ample opportunity to litigate the merits of the matter and, having made a general appearance, cannot now be heard to complain of defects in the service of the order to show cause.” (P. 652.)

Among the cases cited in support of the Lacey rule is Goble v. Appellate Dept. of Superior Court, 130 Cal.App. 737 , 739 [ 20 P.2d 345 ], wherein the basis for the rule is thus stated: “In other words, to translate this language into terms of the present proceeding, while petitioner had no notice preceding the order staying remittitur, he had his day in court under the motion to vacate it. It is for this reason that he was not prejudiced by the lack of notice. The only purpose of the notice, if one were in fact required, would have been to furnish him an opportunity to be heard. That opportunity he has had.”

The Lacey case was followed by this court in Otsuka v. Balangue, 92 Cal.App.2d 788 , 792 [ 208 P.2d 65 ], It is there said: “Furthermore, if there had ever been any validity in plaintiffs’ contention that the proof of service is insufficient by reason of the use of the term ‘mail’ instead of ‘postoffice,’ the objection has been waived. Plaintiffs did not appear specially to object to the service or the proof of service but made a general appearance and resisted the motion. . . . Since

In the instant case defendants’ insistence upon fraud, mistake, inadvertence, surprise, excusable neglect and the claim that the judgment is void, amounted to the seeking of relief which is available only to one who has made a general appearance. They had their hearing upon those matters of substance and cannot be prejudiced by the faulty six-day notice.

The court ruled against defendants with respect to grounds asserted under section 473, Code of Civil Procedure, and we think it properly did so upon the record made before it.

Our foregoing rulings upon the questions of fraud and inadequacy of notice of motion to vacate necessitate reversal of the order now on appeal and render unnecessary any discussion of appellant’s claim that respondents did not move within a reasonable time, were otherwise guilty of laches requiring a denial of their motion, or the claim that defendants were not entitled to be heard because they were in contempt of court with respect to another action concerning a different plane. Likewise unnecessary is discussion of appellant’s claim that section 473, Code of Civil Procedure, and not section 473a, Code of Civil Procedure, governs this matter because defendants were personally served outside the jurisdiction pursuant to an order for publication of summons.

There was no showing of any grounds warranting the vacation of the default in this case.

The first full paragraph of respondents’ brief in Number 23151, beginning at line 21, page 1, and ending at line 7 of page 2 thereof, makes derogatory remarks and veiled charges against one of the superior court judges concerning a matter not before this court. The paragraph on page 6 of said brief which is captioned Judicial Notice” and begins at line 11 and ends at line 19 of said page makes certain assertions concerning difficulties of appellant with the federal government, which have "no place in this proceeding. The same statements appear in respondents’ brief in Number 23152, namely, at page 1, line 19 to page 2, line 5, and at page 6, lines 11 to, 19 inclusive. Such matters will be stricken.

The order under appeal in Johnson v. Finn, No. 23152, is affirmed. The above mentioned portions of respondents’ brief in said cause are stricken from the record.

Fox, P. J., concurred.

Mr. Justice Herndon does not participate herein.

Respondents’ petition for a rehearing in No. 23151 and appellant’s petition for a rehearing in No. 23152 were denied May 5, 1959, and the opinion was modified to read as printed above. Respondents’ petition in No. 23151 and appellant’s petition in No. 23152 for a hearing by the Supreme Court were denied June 3, 1959. Traynor, J., and Sehauer, J., were of the opinion that the petitions should be granted.

On June 19, 1959, the following opinion was rendered in No. 23151:

It appearing that plaintiff’s notice of appeal herein describes two minute orders from which he appeals, viz., (1) order of September 24, 1957, which vacates the judgment etc. and (2) order of October 21, 1957, which grants plaintiff’s motion to reconsider said order of September 24, 1957, “and now affirms the order of September 24, 1957, vacating said default and default judgment. ’' It further appearing that the opinion filed herein on April 7, 1959, reversed said order of September 24, 1957, and technically left the appeal from order of October 21, 1957, still pending, and it further appearing that said last mentioned order is not appealable, now, therefore, it is ordered that the attempted appeal from the order of October 21, 1957, is dismissed.

Herndon, J., did not participate therein.

A petition for a rehearing in No. 23151 was denied July 15, 1959. Herndon, J., did not participate therein. On August 17, 1959, respondents’ petition for a hearing in No. 23151 by the Supreme Court was denied.