Jacks v. Baldez

31 P. 899, 97 Cal. 91, 1892 Cal. LEXIS 764

Opinion

Garoutte, J.

This is an appeal from an order setting aside a judgment. The motion was made eleven months after the judgment was entered, and was based upon the grounds that the moving parties, the defendants, were not served with notice of the decision of the court overruling their demurrer to the complaint, and allowing them twenty days to answer.

The motion to set aside and vacate this judgment was not made under the provisions of section 473 of the Code of Civil Procedure, and aside from the power there granted, a judgment can only be vacated upon motion when it is void upon its face. (Moore v. Supetior Court, 86 Cal. 495.) A judgment is void upon its face when that fact is made apparent by an inspection of the judgment roll. (People v. Harrison, 84 Cal. 609.) Respondents’ motion was based upon the fact that they received no notice of the decision of the court in overruling the demurrer and giving time to answer. Under section 670 of the Code of Civil Procedure, which provides what documents shall constitute the judgment roll, we find no mention of any paper proving service of the notice of decision upon an order overruling a demurrer. In Catanich v. Hayes, 52 Cal. 338, the court said: “The notice of the overruling of the demurrer to the complaint, if one was given, would not of itself form part of the judgment roll.” It follows that at the time the motion to set aside the judgment was granted, the judgment was not void upon its face, for a judgment roll was presented, which, upon inspection, appears to be complete and entire in all its parts. The motion not having been made under section 473 of the Code of Civil Procedure, and the judgment not being void upon its face, it follows that the order of the court in setting it aside was erroneous.

Let the order be reversed, and the cause remanded.

Paterson, J., and Harrison, J., concurred.

Hearing in Bank denied.