Heward

On November 27, 1951, E. S. Heward filed a complaint for money against Fred Cromwell and three other defendants. On July 8, 1954, default judgment was entered in Howard’s favor against all four defendants in the amount of $9,024.32.

On July 1, 1955, Heward demanded that defendant Cromwell pay him the amount of the default judgment. Cromwell, who had previously been unaware of the judgment against him, then brought an independent action in equity to set aside the default judgment (see facts set forth in Cromwell v. Heward (1959) 169 Cal.App.2d 88 [ 337 P.2d 151 ]).

For a clear understanding of our determination, it is necessary to detail the proceedings in that equity action and the appeal therefrom. In that action, the court found that entry of the default judgment had been obtained by means of filing a false and fraudulent affidavit of service upon Cromwell ■ that Cromwell did not learn of the judgment against him until July 1, 1955, and had a sufficiently meritorious defense to entitle him to a trial of the issues in a proper adversary proceeding {supra, p. 89). The court further found that He- ward was personally guilty of no fraud, and that he had had no contact with nor…