207 P. 940 | Cal. Ct. App. | 1922
This action was brought to recover from defendants an amount of money as damages. Defendants Sunset Supper Club (a corporation), Tony Matowich, and *641 George Morris failed to answer within the time fixed by law after service of summons, and their default was duly entered and judgment taken on May 18, 1921. On the 13th of June, 1921, after notice to the plaintiff, said defendants presented to the superior court their motion to set aside the default and the judgment entered thereon and to be allowed to file an answer. The court made an order granting the motion, conditioned upon said defendants paying to the plaintiff the sum of $33.30 costs, which costs were paid. The plaintiff has appealed from the order.
[1] In support of the appeal it is argued by counsel for the plaintiff that the showing made by the defendants was insufficient to authorize the trial court to grant the motion. It is contended that the notice of motion was insufficient in its statement of grounds; that the facts shown by the affidavits did not establish that the neglect on the part of the defendants in failing to appear and answer was excusable, and that no sufficient affidavit of merits was presented. The notice of motion did state that it would be made upon the grounds that the default judgment had been entered through the "mistake, inadvertence, surprise, and excusable neglect of these defendants, and each of them," and that the motion would be made upon the affidavits of the individual defendants and upon the verified answer of said defendants, including the Sunset Supper Club. The notice of motion contained all of the statements requisite under the provisions of section
The attorney to whom Matowich had taken the summonses in the first instance testified orally on the hearing of the motion that Matowich came to his office with one of the defendants Topuzes, and that he was requested to secure a dismissal of the action as to Topuzes, but he did not understand that he had been employed to represent the other defendants, although he testified that it was "entirely possible that Matowich may have believed so." He testified further: "They are Greek; they speak rather imperfect English and may not have fully understood all that occurred." This attorney was at that time representing defendant Matowich in another proceeding and had also, at a prior time, been the attorney for defendant corporation.[3] It has been declared over and over again in the appellate decisions of this state that it is the policy of the law to allow causes to be tried upon their merits; that motions to vacate defaults and default judgments are peculiarly addressed to the discretion of the trial judge and that only in cases where a clear and unmistakable abuse of that discretion is shown will an appellate court interfere with such orders. (Berri v. Rogero,
The order is affirmed.
Conrey, P. J., and Shaw, J., concurred. *643