Majority
p. 86[No. 3,991.] SWIFT v. CANOVAN.
Headnote
Opening Default.—Where a defendant obtains an order extending his time to answer, but does not file or serve it, and the plaintiff being ignorant of the order, before the time expires takes judgment against him by default, the Court should, on payment of costs, open the default, and permit the defendant to answer.Obdeb Extending Time to Answeb.—Although the Code does not require an order extending time to answer to be filed or served, yet the more correct practice is to file and serve it.
Appeal from the District Court of the Third Judicial District, City and County of San Francisco.
The action was for trespass, and the plaintiff had judgment for damages in the sum of $20,000, and appealed from an order opening the default. The facts are stated in the opinion.
James McCabe, for Appellant.
J. C. McCeney, for Respondent.
The appeal in this case is from an order opening a judgment by default. It appears that the defendants had duly obtained from the Court Commissioner an order extending the time for answering; but had omitted to file or serve it. Before the expiration of the time granted, the default was entered. We are of opinion that the Court properly opened the default on the payment of costs. The more correct / practice certainly is to file or serve the order extending the time to answer. But we are not aware of any provision of law requiring it to be filed or served. In such cases, however, it is proper to impose costs as a condition on which the default will be opened, as was done in this case.
Order affirmed.