Eberhart v. Salazar

This is plaintiff’s appeal from an order vacating and setting aside a default judgment in an action wherein defendants failed to file their amended answer within the time fixed by the order of court, after a demurrer to the original answer had been sustained.

The record discloses that the court by ex parte order had extended defendants’ time to file said amended pleading' until and including Friday, March 30, 1923. On the day following, Saturday, March 31, 1923, the amended pleading, not then having been filed, the clerk of said court, at plaintiff’s request, entered judgment by default against said defendants. On April 11, 1923, defendants served notice of motion to set aside said default judgment, and pursuant to an order shortening time, said motion was heard on April 13, 1923, and, on May 8, 1923, was granted.

It appears from the affidavit presented in support of defendants’ motion to vacate said default judgment that said amended pleading was mailed in San Francisco on March 30, 1923, by defendants’ attorney to the county clerk of Contra Costa County, at Martinez, and it is averred in said affidavit that the distance from San Francisco to Martinez is thirty-five miles and that between the places there is a regular communication by mail. The exact time said amended pleading arrived in Martinez is not shown, but it positively appears that, notwithstanding the entry of said default judgment on Saturday, March 31, 1923, said amended pleading was filed by the county clerk on Monday, April 2, 1923, and that the same thereafter continued to remain a part of the files in the action. Such fact is established by the duly authenticated amendment to the record brought up on a motion for diminution thereof.

Appellant’s first contention on this appeal is that the order appealed from was based upon a defective affidavit of merits in that said affidavit was made by the attorney for defendants, and not by the defendants themselves; that no

[1] We think that appellant’s contention cannot be sustained, for the reason that it clearly appears from the record that on Monday, April 2, 1923, within two days after the default judgment had been entered, said amended pleading, duly verified by one of the defendants, and setting forth the defense to the cause of action alleged in the complaint, "was filed in the office of the county clerk, and constituted a part of the record and files in the case when the motion to vacate the default was served and presented. Therefore, no affidavit of merits was necessary. (Savage v. Smith, 170 Cal. 472 [ 150 Pac. 353 ]; Melde v. Reynolds, 129 Cal. 308 [ 61 Pac. 932 ]; Fulweiler v. Mining Co., 83 Cal. 126 [ 23 Pac. 65 ]; San Diego Realty Co. v. McGuire, 7 Cal. App. 264 [ 94 Pac. 374 ].) [2] The fact, if it be a fact, that a copy of said amended answer was not served upon appellant nor produced in court on April 11, 1923, at the time of the hearing of said motion, does not alter the situation. Respondents’ notice of motion stated that said motion would be made on said notice “and on the entire record- in the action, the minutes of the clerk, the files, and records and pleadings.” As above pointed out, on April 2, 1923, said amended answer became and thereafter continued to be a part of the records and files in the action, with which appellant was charged with notice, and was available as an affidavit showing a meritorious defense. (Reher v. Reed, 166 Cal. 525 [Ann. Cas. 1915C, 737, 137 Pac. 263 ]; Savage v. Smith, supra.)

[3] Appellant’s second point is that the facts averred in said affidavit were not such as to show excusable neglect on the part of defendants. In Savage v. Smith, supra, it was said: “As we have recently had occasion to say: ‘The law governing this class of cases is so well settled and has been so often declared in the decision of this court that we may dispense with the citation of authorities. An application to be relieved from a default under section 473 of the Code of Civil Procedure is addressed to the sound dis

We are satisfied that the facts averred in the affidavit fully justified the court in vacating the default.

The order appealed from is, therefore, affirmed.

Tyler, P. J., and St. Sure, J., concurred.