Hughes v. Wright

This is an appeal from a default judgment and from an order refusing to set the same aside.

The action was commenced by plaintiff against defendant to quiet title to property, cancel a lease, and to recover certain moneys allegedly due from defendant pursuant to the terms of said lease and of an oral agreement allegedly made in connection therewith.

Service of summons and complaint was made upon the defendant April 30, 1943. He employed counsel (not his present attorney), and an oral agreement was entered into between counsel for plaintiff and defendant extending the time within which the latter might plead to the former’s complaint. The term of such extension is in conflict. The affidavit of plaintiff’s attorney avers that counsel retained by defendant sought and was granted a ten-day stay of time within which to appear in the action. That no further extension of time was given but that plaintiff’s counsel did state to defendant’s attorney that should the latter require additional time and forward to plaintiff’s counsel a written stipulation providing for a further extension, not exceeding ten days, such stipulation would be signed, but that no written stipulation was ever presented. That two personal conferences and several telephone conversations were held by

The affidavit of the attorney who represented the defendant at the time here pertinent states that he contacted plaintiff’s counsel and in conjunction with the latter “tried diligently for several months to effect an amicable settlement between the parties to the action; that during this time there was an indefinite extension granted to defendant by Mr. Moore

In his affidavit defendant’s counsel further states that on July 2d he talked with plaintiff’s attorney on the telephone, during which conversation the latter inquired whether “it was all right to take Mr. Wright’s default”; that defendant’s counsel informed plaintiff’s attorney that “while there was no moral obligation on his part” not to take such default, that defendant’s counsel would appreciate it if plaintiff’s attorney would wait until the first of the following week “because Mr. Wright had been very busy down in San Diego,” and in which request plaintiff’s counsel acquiesced. Defendant’s attorney then sets forth in his affidavit that by reason of an injury sustained by him he was confined to his home on July 8th and 9th, 1943; that sometime during the day of July 8th, the defendant personally telephoned him at his home and talked with his wife, who after consultation with him, informed the defendant that her husband would try to get a further extension to the first of the following, week, which would be July 12th. Defendant’s counsel then sets forth in his affidavit that he communicated with his office secretary but that he and his secretaiy “cannot now agree whether affiant neglected to ask her to call Mr. Moore or whether affiant informed her and the secretary neglected to call Mr. Moore.” In any event, it is admitted that defendant’s counsel did not make a request of plaintiff’s counsel for a further extension.

The affidavit of Charles Wright, the defendant, states that he left the city of Los Angeles on a business trip to San Diego June 26, 1943, at which time “he was under the impression that negotiations for settlement were still pending”; that he

While it is true as contended by appellant that the law looks with favor upon the settlement of controversies rather than litigation and will not permit a litigant to be deprived of his right to plead his cause when, by reason of continued negotiations looking toward a settlement, he is lulled into a sense of security concerning the necessity for his filing a formal pleading (Beard v. Beard, 16 Cal.2d 645 [ 107 P.2d 385 ]), nevertheless, the law also frowns upon setting aside default judgments which are the result of inexcusable inadvertence, surprise or neglect of defendants, themselves, or of their attorneys in the performance of the latters’ obligations to their clients. The condition or situation which section 473 of the Code of Civil Procedure seeks to remedy is one in which a party to a cause is unexpectedly placed, to his injury without any fault or negligence of his own which ordinary prudence could not have guarded against. It is not every inadvertence or negligence that warrants judicial relief, but only such inadvertence or negligence as may reasonably be characterized as excusable. In the instant case we are confronted with a situation wherein appellant’s attorney had two or three times told him to retain the services of an

As to appellant, himself, the record indicates that on July 8, 1943, when he received the letter from his attorney advising that the latter had withdrawn from the case, he did nothing except to communicate with counsel who had represented him and was informed by the latter’s wife that her husband would attempt to secure an additional ten days’ extenstion. Notwithstanding this precarious condition in the affairs of his ease, appellant did nothing to ascertain whether such extension had been granted until July 21st. Even had such ten-day extension been granted on July 8th, it would have expired on July 18th, or two days before the default judgment was entered. Nothing contained in the affidavits on behalf of appellant shows any fault or omission of duty on the part of respondent or his counsel. We are unable to perceive wherein appellant can claim to have suffered accident or been surprised, when he knew, or might have expected, the result which followed the withdrawal of his attorney and his own failure to secure other counsel or to solicit a further extension of time from respondent’s counsel. The urgency of respondent’s business in San Diego does not appear, but so far as the record discloses, his absence from Los Angeles was a matter of choice. Having chosen to consider his interest at San Diego of more concern than his interest in this action, he cannot now avail himself of his neglect of the latter as something that ought to be excused. Furthermore, upon his return from San Diego on July 7th, there yet remained several days within which he could have engaged other counsel or have sought further extension of time to answer, but he chose to rely solely upon his request of counsel who had withdrawn from his case to attempt to secure a further extension, and beyond that, appellant manifested no further interest until some ten days later, at which time he learned that on the day previous to his inquiry of respondent’s counsel, a default judgment had been entered against him. We cannot therefore say that the court, upon the showing made by appellant in his affidavits, com

For the foregoing reasons, the judgment and the order denying defendant’s motion to vacate the default taken against him are, and each is, affirmed.

York, P. J., and Doran, J., concurred.