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Ackerman v. Beach

104 Cal. App. 299 Court Second Appellate District, Division One. Decision date 1930-03-04 Docket Civ. No. 5726 English

Delivered by CRAIG (ELLIOT), J., pro tem.

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p. 299
[Civ. No. 5726.
Second Appellate District, Division One.
March 4, 1930.]
S. E. ACKERMAN, Appellant, v. ANNIE T. BEACH et al., Respondents.
C. A. Stice for Appellant.
E. S. Wakeman for Respondents.

This is an appeal by plaintiff from an order of the Superior Court setting aside a default and judgment.

On January 22, 1927, the attorney for respondents served upon the attorney for appellant a demurrer to the complaint, but did not attempt to file the same until the second day of February. Default was taken January 28, 1927, and judgment thereon was obtained on February 1, 1927. The affidavit of the attorney for respondents, in support of the motion to set aside the default and judgment, states, among other things, that at the time the demurrer was served the attorney for appellant suggested that the whole controversy (this case and other matters) between the parties should be adjusted out of court and

p. 300
requested him to interview his clients to see if the matter could be settled to avoid litigation; that he stated he would do so, but that he had a jury trial set on the following Thursday, which would occupy him all of the following week, but as soon as that was over he would be glad to see if the matter could be settled without further litigation. The counter-affidavit of attorney for appellant denied some of said statements. In the reply affidavit of the attorney for respondents he admitted that it was not agreed in so many words that the demurrer would not be filed, but insisted that they did agree that affiant was to take up- the matter with his clients and endeavor to settle the matter in dispute, and that he understood and believed in good faith that pending litigation would rest without further proceedings, awaiting the outcome of such settlement conference.

In view of the order granting the motion to set aside the default, it must be assumed that the court believed the statement of facts as made by the attorney for respondents. This being so, the court was justified in deciding that the delay in the matter of filing the demurrer was excusable. (Waybright v. Anderson, 200 Cal. 374 [ 253 Pac. 148 ].)

The motion to set aside the default and judgment was accompanied by a sufficient affidavit of merits.

The order appealed from is affirmed.

Conrey, P. J., and Houser, J., concurred.

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