Hyperlawhypertext legal database Whipley v. Flower 1 Cal. Unrep. 35

← Cases

Whipley v. Flower

1 Cal. Unrep. 35 Court Cal. Decision date 1856-09-22 Docket No. 987 English

Judges I concur: Terry, J.

Delivered by MURRAY, C. J.

Contents

Majority

p. 35
D. H. WHIPLEY, Appellant, v. SAMUEL FLOWER, Administrator of the Estate of I. BECKER, Deceased, Respondent.
No. 987;
September 22, 1856.

Headnote

A Judgment by Default will not be Opened When It Appears to have eome about through the defendant’s gross neglect only.
APPEAL from Sixth Judicial District, Sacramento County.
Long & Dunlap for appellant; Weller, Johnson & Morrison for respondent.

— Service was had upon the defendant in San Francisco more than forty days before default and judgment in this case. There was daily communication between the two .places, so that the defendant had ample time to prepare for his defense. The affidavit, on which the motion to set aside the judgment was based, so 'far from showing surprise or excusable neglect, shows a gross neglect on the part of the defendant. He should have apprised his attorney of the time in which the answer should be filed, or the attorney ought to have obtained the information from the clerk’s office and not have waited until judgment was taken against him.

With the merits of the case we have nothing to do.

Order reversed.

I concur: Terry, J.