Jenkins v. Gamewell Fire Alarm Telegraph Co. — 3 Cal. Unrep. 655

Majority

p. 655

JENKINS v. GAMEWELL FIRE ALARM TELEGRAPH COMPANY, et al.

No. 14,249;

November 30, 1892.

31 Pac. 570.

Headnote

Judgment by Default—Affidavit to Set Aside.—An affidavit to set aside a judgment by default is not sufficient where it shows that defendants served notice of appearance on plaintiff’s attorneys, but does not show that they agreed to extend defendants’ time to answer, or that defendants supposed their time had been extended.

Judgment by Default.—An Affidavit of Merits, Stating Facts on information and belief, is insufficient, as being hearsay.^[1]

APPEAL from Superior Court, City and County of San Francisco; John F. Finn, Judge.

Action by A. L. Jenkins against the Gamewell Fire Alarm Telegraph Company and others. From an order setting aside a judgment by default, plaintiff appeals.

Dorn & Dorn and Maxwell & McEnerny for appellant; H. B. M. Miller for respondents.

Appeal from an order setting aside a judgment by default, defendants having failed to answer within the time allowed by law. Conceding the facts to be as stated in respondents’ affidavit, still no showing of excusable neglect is made. There is nothing in the affidavit to indicate that plaintiff’s attorneys either expressly or impliedly agreed to extend defendants’ time to answer, or that defendants supposed their time had been extended. In referring to the discretion of the trial court in these matters, it was said in Bailey v. Taaffe, 29 Cal. 424 : “The discretion intended, however, is not a capricious or arbitrary discretion but an impartial discretion, guided and controlled in its exercise by fixed legal principles. . . . . If, on the contrary, we are satisfied beyond a reasonable doubt that the court below has come to an erroneous conclusion, the party complaining of the

p. 656

error is as much entitled to a reversal in a case like the present as in any other.” This is no question of conflict of evidence, but defendants’ affidavit, standing alone, fails to reach the mark.

The affidavit of merits is also insufficient. It states that one of the defendants has fully and fairly stated the facts of the case to affiant (defendants’ attorney), and he believes that said defendants have a good and substantial defense, etc. Affiant’s information as to the facts of the case is purely hearsay. Bailey v. Taaffie, supra, with sound reason holds such an affidavit of no avail.

Let the order be reversed.

We concur: Paterson, J.; Harrison, J.