People v. One 1941 Chrysler Sedan

A rehearing was granted in this ease because of the contention of the attorney general, made for the first time on rehearing, that, even if the judgment here involved is void, since it is not void on its face, and since section 473a of the Code of Civil Procedure is not applicable, the sole remedy of the party adversely affected is an independent suit in equity unless such party moves to set the judgment aside within six months of its entry as provided in section 473 of the Code of Civil Procedure. Here the motion to set the judgment aside was made 363 days after the judgment of forfeiture by default was entered. After further study of this problem we are convinced that the contention made is without merit.

The contention fails to consider all of the various paragraphs of section 473, assumes that the six-month limitation found in paragraph 3 of that section is applicable to the entire section, and assumes that, unless section 473a applies, there is no power in a trial court to allow such relief after six months. This confusion arises because of the fact that prior to 1933 the provisions of section 473 and of section 473a were contained in one section, so that there was both a…