Weck v. Sucher

Plaintiff appeals from an order granting defendants’ application to be relieved from a default in failing to answer plaintiff’s complaint. One of the grounds urged for reversal is that in granting said application the trial court abused its discretion.

The facts set forth in the affidavits filed by defendants in support of their application were not controverted and may be stated as follows: The summons in the action was served on defendants on March 11, 1927, and consequently the statutory ten-day period within which they were required to appear and answer the complaint expired on March 21, 1927.

In Brasher v. White, 53 Cal. App. 545 [ 200 Pac. 657 ], and Reidy v. Scott, 53 Cal. 69 , the facts were substantially the same as those presented here, and in each case the trial court refused to vacate the default; but on appeal the order of refusal was reversed, the court holding that the defaulting party was entitled to have the default set aside.

Plaintiff in support of his position has cited a number of cases to the effect that forgetfulness and like instances of inexcusable neglect on the part of a defaulting party or his attorney are insufficient grounds upon which to base an order vacating the default, but we do not deem those cases in point for the reason that here the facts show that within three days after being served with the summons, defendants consulted their attorney and laid before him all of the facts of the controversy; and thereupon said attorney prepared an answer, had it verified, and was ready to file the same before thé end of the ten-day period; but, as stated, owing to the fact that he had been mistakenly informed by Ms clients as to the date of the service, he believed that the statutory period for filing the same did not expire until March 22, 1927. Therefore, as held in the two cases herein-above cited, the failure to answer within the period fixed by the statute cannot be said to be the result of indifference or lack of diligence on the part of the defendants or their attorney, but was due solely to the mistake on the part of the defendants as to the date of the service of the summons.

Aside, however, from the controlling effect of the two cases above mentioned, the law in this state is well established that only in very plain cases of abuse of discretion may the courts of appellate jurisdiction disturb the action of a trial court in a matter of this character; and especially

The record in the case before us discloses that on the very day the default was entered defendants served and filed the necessary moving papers to set the default aside, and that the motion made in that behalf was speedily heard and determined; and defendants were required to pay the costs. Moreover, there is no claim made that the slight delay caused by the proceeding in any way affected plaintiff’s opportunity to establish his case on trial. The record also shows that defendants are not seeking to defeat plaintiff’s action upon technical grounds, but are interposing a meritorious defense. With respect thereto it appears that plaintiff is suing to recover $2,500, the complaint alleging in two counts that defendants, as plaintiff’s agents, received from plaintiff $2,000 and household furnishings of the value of $500, which, the complaint alleges, they agreed to return on demand, but failed so to do. The answer reveals that said claim grows out of the sale of an apartment house business, and the substance of the defense pleaded therein is that a full and final settlement has been had between the parties, and that consequently there is nothing whatever due plaintiff. In the foregoing state of the record it is evident that no substantial grounds exist upon which to base a conclusion that the trial court abused its discretion in allowing the case to be tried on the merits.

Further contention is made that the moving papers and the order based thereon relate exclusively to the matter of vacating the judgment rendered by the court and consequently do not affect the default entered by the clerk. Plaintiff did not question the scope of the motion at the time it was presented and determined, the bill of exceptions reciting merely that he appeared and opposed the granting of the motion upon the grounds of an insufficient showing under section 473 of the Code of Civil Procedure. However,

The order is affirmed.

Tyler, P. J., and Cashin, J., concurred.