Hancock v. Pico — 40 Cal. 153

Majority

p. 153

No. 2,320.

HENRY HANCOCK, Respondent, v. PIO PICO, Appellant.

Headnote

Pkactice. — De:fadi.t.—where a defendant is personally served in the county in -which the action is brought, with the summons and copy of the complaint, and leaves the State without having prepared and verified an answer, and his attorneys do not answer for him, the Court is justified in rendering judgment by default, and in refusing to open the default.

Appeal from the District Court of the Seveuteeuth District, Los Angeles County.

The complaint in this case alleges that, in the month of October, A. D. 1861, the defendant collected and received as Trustee of the plaintiff, the sum of six thousand one hundred and twenty dollars, of which the defendant afterward, in the exercise of said trust, paid and expended the sum of five thousand dollars; that, in the month of January 1868, plaintiff demanded payment of the balance remaining in the hands of defendant amounting to one thousand one hundred and twenty dollars, and that defendant refused, and still now refuses to pay the same or any part thereof.

The other facts are stated in the opinion.

Glassell, Ghapmcm, & Smith, for Appellant.

John B. Felton, of Counsel.

p. 154

W. A. Cornwall and Chas. H. Larrabee, for [Respondents.

delivered tbe opinion of tbe Court, Temple, J., Cbockett, J., and [Rhodes, C. J., concurring:

A judgment by default having been rendered against tbe defendant in an action upon contract for tbe recovery of money, be made a motion to open tbe default, and from tbe order denying tbe motion be brings tbis appeal.

Tbe defendant was personally served, in tbe county in wbicb tbe action was brought, with tbe summons and copy of tbe complaint, wbicb was verified in tbe usual form. He retained attorneys, to whom be entrusted tbe defence of tbe case, and then left tbe State and went on a visit to the State of New York without having prepared and verified an answer. In bis absence bis attorneys did not verify it for him. Tbe result was a default for want of answer, and final judgment followed.

We think that tbe Court below did not err in refusing to open tbe default under these circumstances. There was neither surprise nor excusable neglect in tbe defendant leaving tbe State, and thus deliberately placing bis case in such a situation that no defence could be made for him. No excuse is pretended to be shown why be did so.

Judgment is affirmed with twenty per cent, damages.

Sprague, J., expressed no opinion.