Opinion
S.F. No. 1862.
March 27, 1900.
MOTION to dismiss appeal from an order of the Superior Court of Fresno County refusing to set aside a default and to fix time for the defendant to plead. E.W. Risley, Judge.
The facts are stated in the opinion of the court.
Snook Church, and Snow Freeman, for Appellant.
W.F. Thompson, for Respondent.
Judgment in the above action was entered against the defendant April 6, 1897, and on August 9, 1897, the court made an order vacating the judgment as to the respondent herein. An appeal from this order was dismissed April 9, 1898. Thereafter the plaintiff made a motion before the superior court to set aside the default of the defendant Dollie E. Alford, and to fix a time for her to plead. Her motion was denied May 21, 1898, and the present appeal is from this order. The respondent moves to dismiss the appeal upon the ground that the order appealed from is not an appealable order, and that the appeal was not taken and perfected as required by law.
The ground upon which it is claimed that the order is not appealable is that the dismissal of the plaintiff's appeal from the order vacating the judgment against the respondent operated as an affirmance of that order, and precludes the plaintiff from an appeal from any order that might have been therein reviewed.
The order from which the present appeal was made is an order made after judgment, and is by express terms of the code appealable. The plaintiff sought by her motion to set aside a default previously entered, and to fix a time for the defendant to plead. The order entering her default was not an appeable order, and there had been no previous order fixing or refusing to fix a time within which the defendant should plead. The plaintiff did not, therefore, seek by her motion to obtain an order vacating any previous appealable order.
An appeal from an order vacating a judgment rests upon a record of its own, and does not necessarily include a record of any proceedings prior to the entry of the judgment. The motion to set aside a default previously entered, and fix a time for the defendant to plead, would not presumptively involve the determination of any facts presented on the motion to vacate the judgment, and, consequently, it does not appear upon the face of the order that those facts could have been determined at that time. Each of the motions is a motion made after judgment, but each is distinct from the other, depends upon a different record, and seeks different relief. The plaintiff is not precluded from making the motion by reason of the fact that the default was entered at his instance. (Brackett v. Banegas, 99 Cal. 625.)
The ground upon which the respondent claims that the appeal has not been perfected is that Mr. Thompson, upon whom the notice of appeal was served, was not the attorney for Mrs. Alford. It appears from the bill of exceptions herein that he had appeared in the superior court as her attorney for the purpose of vacating the judgment and had also appeared upon the appeal therefrom, and, although he stated in his notice at that time that he appeared only for the purpose of that motion, it also appeared from the affidavit of Mrs. Alvord, upon which the motion was based, that while she claimed that the judgment was null and void by reason of a want of service upon her of the summons in the action, her motion for relief was in reality made upon the ground of excusable neglect in not sufficiently examining the papers with which she was served, and which were in fact a copy of the summons and complaint. The appearance of Mr. Thompson must therefore be considered as a general appearance in the case, and, as no substitution of attorneys or renunciation of authority had ever been made by him or by Mrs. Alford, the service upon him must be held sufficient. (Security Loan etc. Co. v. Boston etc. Co., 126 Cal. 418.)
The motion is denied.
Garoutte, J., and Van Dyke, J., concurred.