CARL BERNHEIM et al., Respondents, v. M. CERF, Appellant, 123 Cal. 170

HENSHAW, J. Plaintiffs brought their action to foreclose a mortgage upon realty executed to them by the defendant Cerf. The complaint was unverified. The defendant filed an unverified answer. At the trial defendant did not appear. Plaintiff’s attorneys moved the court to strike the answer from the files for lack of verification, upon the somewhat negligent assumption that the complaint was a verified pleading. The motion was inadvertently granted by the court. A decree for plaintiffs was given upon May 26, 1896. The property was sold upon June 24, 1896, and was bought by plaintiffs.

After this the discovery was made that the answer had been improperly stricken from the files, and upon July 6, 1896, plaintiffs moved the court to vacate the judgment, reinstate the answer and restore the cause to the calendar for trial. The motion was granted and Cerf appeals. His contention is, that as plaintiffs were present at the trial and induced the error, their remedy was not under

section 473 of the Code of Civil Procedure, but by motion for a new trial. In this, however, he is mistaken. The course pursued by respondents was the appropriate one. “Courts of equity are ever ready to relieve from sales made upon their decrees, where there has been irregularity in the proceedings, .... provided application be made to them in the suits in which such decrees are entered, within a reasonable time, and the relief sought will not operate to the prejudice of the just rights of others.” (Goodenow v. Ewer, 16 Cal. 461; 76 Am. Dec. 540.)

Section 473 of the Code of Civil Procedure is in recognition of this equitable principle. Its aid may be invoked by one in whose favor the judgment is rendered, even though he was present at the trial. (Brackett v. Banegas, 99 Cal. 623.) In this case the injury worked by the inadvertent order of the court striking out defendant’s answer is apparent. The application for relief was timely made. Its allowance did not prejudice any of defendant’s just rights. The order appealed from is affirmed. Temple, J., and McFarland, J., concurred.