The application was addressed to the sound discretion of the Court below, and unless it can be seen that its discretion has been abused the order will not be reversed on the merits. (Roland v. Kreyenhagen, 18 Cal. 455; Woodward v. Backus, 20 Cal. 137; Bailey v. Taaffe, 29 Cal. 422.)
A party entitled to relief must generally ask it in his ownname; and there is nothing in the present case to take it out of this rule. There is no doubt that Stevens and Sweeny are the legal representatives of the plaintiff, within the meaning of the statute; and the statute provides that relief may be granted either to a party or his legal representatives. (Prac. Act, Sec. 68.)
The case of Dimick v. Deringer, 32 Cal. 488, was decided on a ground peculiar to the class of cases to which it belongs. The motion there was by a landlord to set aside a judgment in ejectment against his tenant; and it was held that the motion was improper, for the reason that the landlord could not be made a party to the proceedings. The tenant was the only person against whom the action could be maintained, and it was necessary that the defense should be conducted in his name. The landlord could not be substituted in his place, and was not in any sense his legal representative. The motion, therefore, was unauthorized by the statute; and the decision proceeded on a substantial and not on any technical ground. There is nothing in the case giving the slightest support to the objection taken here, and there are several cases which, according to our reading, are directly opposed to it. (People v. Lafarge, 3 Cal. 130, and cases already cited; see, also, notes to Sec. 68 of Prac. Act, by Parker.)
The statute provides that relief may be granted on the ground of surprise, mistake, or excusable neglect; and the proposition is that these grounds must exist with reference to the party to the record.
We see nothing in the statute requiring such a construction, and it would certainly be in conflict with the spirit and meaning of the provision. (Montgomery v. Ellis, 6 How. N.Y. 326.)
JUDGES: Wallace, J. Rhodes, J., concurring. Mr. Justice Crockett dissented.
OPINION
WALLACE, Judge
Corwin brought an action in the District Court of the Twelfth Judicial District against Bensley, Compton, Mason, and Dumartheray, in June, 1864, filing a lis pendens, and alleging himself to be the owner in fee and in possession of certain lands, consisting of several blocks, among the rest block one hundred and two, in the Potrero Nuevo survey, in the City and County of San Francisco, to which lands he alleged that the defendants claimed title adversely to him, etc., and prayed that the claim of title on the part of the defendants be adjudged to be invalid, etc.
The defendants, Bensley, Mason, and Dumartheray, filed an answer, in which they denied the possession of Corwin, and set up title in themselves to the lands in controversy, and demanded judgment for their costs--this answer was filed in July, 1864. In November, 1866, the defendants, under a stipulation they had obtained for that purpose from the attorney of Corwin, filed an amended answer, in which they again denied the possession of Corwin, and set up their own title to the premises; alleged that if Corwin was in possession, he was wrongfully so, and concluded with a prayer that the defendants be adjudged to be owners, and that they recover possession of the premises, etc. No notice of lis pendens seems to have been filed by the defendants. Upon motion of the defendants the cause was, within a few days after the filing of the amended answer, transferred to the District Court of the Third Judicial District, for the County of Alameda, for trial, in which Court, in March, 1868, in pursuance of a stipulation filed, a judgment was rendered in favor of the defendants, adjudging them to be, and to have been, at the commencement of the action, the owners of the premises, and that they recover the possession thereof without damages and costs. In December, 1865, pending the action, Corwin had conveyed block one hundred and two to one Conway, who subsequently, in August, 1867, conveyed it to Stevens and Sweeny, and these last, being in possession, were turned out on the 2d of April, 1868, under process issued upon the judgment of March, 1868. Stevens and Sweeny thereupon moved the Court below for an order setting aside the judgment as to that block, and allowing them to be substituted as plaintiffs in the action in which it had been rendered, with leave to prosecute it for their own benefit. This motion was granted, and the defendants, Mason and others, bring this appeal from the order.
The motion of the respondent was made upon the provisions of section sixty-eight of the Practice Act, authorizing the Court to relieve a party, or his legal representatives, from a judgment taken against him through his mistake, inadvertence, surprise, or excusable neglect. Supposing, for the purposes of the case, that the respondents, who derive their title mediately from Corwin, are his " legal representatives" in the sense intended by the statute--a proposition to which I am by no means prepared to assent--I am of opinion that such legal representatives must be held to show such a state of facts as would have supported a similar application upon the behalf of the party whom they claim to represent--unless, possibly, in a case of an executor or administrator moving in behalf of creditors to open a judgment collusively or negligently suffered by the testator, or intestate, by which the creditors may be damnified. Ordinarily the successor in interest of a party to an action, if he would appear, must, in making his appearance, occupy the position of his predecessor, and, as succeeding him in the case, must be bound to the same extent to which the predecessor would have been bound had the application been made in his behalf. It is unnecessary to determine in this case the effect of the lis pendens filed by Corwin--if it is to be considered as imparting notice to his grantees of the pendency of the action he had brought, and of the possible result that his title might be adjudged to be invalid in that action, it would have been the duty of the respondents, in the exercise of ordinary prudence, to have applied for leave to protect their interest during the six months and upwards which actually intervened between the delivery to them of the deed under which they claim, and the entry of the judgment which they now seek to vacate. If, on the other hand, they are to be considered as having purchased without notice of the pendency of the action, it would result that their title, not being affected by the judgment as rendered, they cannot support an application to set it aside, any more than could any other person whose rights were not affected by it. These are considerations, however, which do not arise in the case. I am of opinion that if the vendees of Corwin can be heard at all in such a proceeding as this, in opposition to the judgment, they can be heard only as Corwin himself might have been heard, and that the appellants must be allowed to resist the application upon any ground of which they might have availed themselves had it been made by Corwin. If in such an application the moving party is to be heard upon new grounds of contest arising out of the mere conduct of the suit itself, it would be, in effect, the institution of a new suit under the name of a substitution or an intervention into an old one. Such a practice, if permitted, would tend to confuse and seriously embarrass the administration of justice in the Courts, and, in my opinion, is not countenanced by the statute referred to. If the respondents have rights in the premises, they can be asserted in an independent action brought for that purpose.
I therefore think that the order should be reversed.
CONCUR
RHODES
Rhodes, J., concurring:
I concur in the judgment, not only on the grounds stated in the foregoing opinion, but also those mentioned in the former opinion in this case.