Opinion
9-19-1955
E. C. LUCAS, Plaintiff and Appellant, v. Henry SWEET, Carl L. Shinn, Frank Hamburger, Benjamin H. Freeman, doing business under the firm name and style of Freeman Adjustment Bureau, Northern Counties Title Insurance Company, a corporation, Emco Investment Company, a corporation, Anglo California National Bank of San Francisco, a corporation, First Doe, Second Doe, Third Doe and Fourth Doe, Defendants and Respondents.* Civ. 16531.
Charles N. Douglas, San Francisco, for appellant. George DeLew, San Francisco, for respondents, Henry Sweet, Northern County Title Ins. Emco Inv. Co. Robert E. Halsing, San Francisco, for respondents, Carl L. Shinn and B. H. Freeman.
E. C. LUCAS, Plaintiff and Appellant,
v.
Henry SWEET, Carl L. Shinn, Frank Hamburger, Benjamin H. Freeman, doing business under the firm name and style of Freeman Adjustment Bureau, Northern Counties Title Insurance Company, a corporation, Emco Investment Company, a corporation, Anglo California National Bank of San Francisco, a corporation, First Doe, Second Doe, Third Doe and Fourth Doe, Defendants and Respondents.*
Sept. 19, 1955.
Rehearing Denied Oct. 19, 1955.
Hearing Granted Nov. 16, 1955.
Charles N. Douglas, San Francisco, for appellant.
George DeLew, San Francisco, for respondents, Henry Sweet, Northern County Title Ins. Emco Inv. Co.
Robert E. Halsing, San Francisco, for respondents, Carl L. Shinn and B. H. Freeman.
NOURSE, Presiding Justice.
Plaintiff sued to quiet title to real property, to vacate a judgment of the municipal court, and for money damages actual and exemplary. Demurrers were sustained to the original complaint and to five successive amended complaints with leave to amend. To the sixth amended complaint, which is now before us, the demurrers were sustained without leave to amend. From the judgment following this order the appeal is taken. We will refer herein to this sixth amendment as the 'complaint.'
Several causes of action are variously pleaded without any effort to segregate them. Basically the complaint of plaintiff is that he employed defendant Shinn, an attorney at law, to procure for him a divorce. Shinn associated with him the defendant Hamburger. This was done in March, 1948. They obtained the divorce, but plaintiff, for some reason not stated, refused to pay their fees in full. At the request of these attorneys plaintiff signed various papers and documents the purport of which he does not know. After the divorce was obtained, the fees remaining unpaid, these attorneys filed an action in the municipal court for payment and obtained a judgment for $340. Though the record in that case shows due service of summons on this plaintiff, he alleged here that he had no 'recollection' of having been served.
Apparently for the purpose of collecting this judgment the defendant attorneys assigned it to the defendant Freeman Adjustment Bureau which, after notice to this plaintiff, demanded payment of and then brought suit to collect rentals on the premises occupied by this plaintiff. Through various legal steps, the sheriff of the county issued his deed conveying the premises to the Freeman Bureau.
It is then alleged that the amount of the judgment thus enforced was $332.44; whereas the value of property sold under execution was in excess of $12,000. Allegations tendering the pleas for actual and exemplary damages followed.
The basic plea of the complaint, stripped of all the innuendoes is that the defendant Shinn procured a judgment against plaintiff in the municipal court for attorneys' fees for legal services admittedly rendered and admittedly unpaid for. No cause of action of any kind is stated against defendant Hamburger. The gist of the action against Shinn and others is that the judgment in the municipal court was obtained without legal service of summons. However, he pleads that due proof of service was made in the municipal court, but that the affidavit of service was false. He does not plead that he was not served with summons, but that he had 'no recollection' of service.
In the procuring of the judgment in the municipal court it was not extrinsic fraud, and hence makes no ground for this action, unless it is pleaded that the affidavit was wilfully false or made with a reckless disregard of the truth. Richert v. Benson Lumber Co., 139 Cal.App. 671, 677, 34 P.2d 840. Here the complaint does not allege that the affidavit was wilfully false--nor that this plaintiff was not served as stated--merely that he did not 'recall' service.
However, the matter of dates is important. Plaintiff engaged the service of his attorneys in March, 1948. Having failed to pay attorneys' fees he was sued by them on November 3, 1948. On January 26, 1949, a judgment by default was entered, and on February 27, 1951, a writ of execution was issued. He commenced the present action on August 7, 1952. Hence, if a fraud were committed in procuring the judgment it occurred on January 26, 1949. Plaintiff had notice thereof at least as early as February 27, 1951 when execution was served on him and he was notified by the new owners to pay rent. The complaint herein was filed August 7, 1952. A period of more than three years elapsed from the date of the judgment to the filing of this action.
Since the action is one to vacate the municipal court judgment and to quiet title to the real property sold under that judgment it should have been commenced within one year from the date of the judgment. The complaint not having been filed within that period it is barred by the provisions of section 473a of the Code of Civil Procedure.
Since the plaintiff rests his case for the vacation of the municipal court judgment on a mere suggestion that service of the process might not have been made--and no allegation that the affidavit of service was wilfully false, nor that the service was not in fact made--he fails to plead a case of extrinsic fraud, or any fraud at all. Richert v. Benson Lumber Co. supra, 139 Cal.App. 671, 677, 34 P.2d 840.
And, since the judgment and the following execution are unassailable, plaintiff cannot recover money damages for loss of the property through the sale.
The judgment is affirmed.
DOOLING and KAUFMAN, JJ., concur. --------------- * Opinion vacated 300 P.2d 828.