100 P. 1077 | Cal. Ct. App. | 1909
This appeal is from an order setting aside a default judgment. It appears from the record that on the eleventh day of October, 1906, plaintiff filed its complaint in the superior court, alleging that defendants were indebted to it in the sum of $1,869.54 upon an account for goods, wares and merchandise sold and delivered to defendants within the two years last past, no part of which had been paid. On the same day a summons was issued in due form under the seal of the court, which was returned and filed on November 12, 1906, with an affidavit of service in due form by Charles S. Johnston, showing personal service upon each of the defendants on October 31, 1906. Upon said return being filed, on the application of plaintiff, a judgment was duly entered by default on said last-named day for the amount prayed for, together with costs. On the thirteenth day of November, 1906, the attorneys for the defendants sent to the attorneys for plaintiff a prepared stipulation, to the effect that the default judgment might be set aside, but *7 they did not tender or offer to file any pleading or answer, and the attorneys for plaintiff declined to sign the requested stipulation. On the same day plaintiff's attorneys returned the stipulation, and wrote to the defendants' attorneys, stating the date of the entry of the judgment, the amount thereof, and in the letter stated, "If your clients say that amount is incorrect we will advise plaintiff to consent to vacate, and let you in to defend." This letter was not answered by defendants' attorneys until December 4, 1906, in which letter defendants' attorneys stated that they had gone over the matter carefully with Mr. McGinn (one of the defendants), and that McGinn "is positive in his recollection that the summons and complaint were served on him on November 1st and not on October 31st, as appears on the return of service." This letter concluded with some propositions as to a compromise settlement. On December 5, 1906, the plaintiff's attorneys, in a letter answering the letter from defendants' attorneys, stated: "We are in receipt of yours of yesterday. The person who made the service stated that the service was made Wednesday, October 31st, and he made an affidavit accordingly. We shall call your attention to our letter of November 13th, wherein we stated that if your clients say that the amount sued for, $1,869.54, is incorrect we will advise plaintiff to consent to vacate and let you in to defend. To that letter we have no answer." This letter concluded by declining to accept the offer to compromise of defendants as unreasonable. On December 10, 1906, defendants' attorneys again wrote to plaintiff's attorneys, but without saying anything as to the merits of the case, stated: "We would like to have default opened in this case and defend on the merits. You don't seem to be satisfied with our offer of compromise." To this letter plaintiff's attorneys replied December 11th, stating: "We fail to see what merits your clients have in this matter, and must therefore decline to open the default." This letter does not appear to have been answered, and the correspondence ceased.
Plaintiff's attorneys took out execution February 4, 1907, and an alias execution on February 14, 1907, but evidently without result, for on the twenty-ninth day of April, 1907, they filed an affidavit and procured an order for the examination of one of the defendants as to his property. On May 13, 1907, defendants' attorneys served and filed a motion to *8 set aside the default judgment: "Because, at the time of entering the said pretended default and the said alleged judgment, the time allowed said defendant by law in which to answer the complaint herein had not expired." This motion was accompanied by the affidavit of Eugene McGinn, in which he stated: "That the summons in the above-entitled action was served on him on the first day of November, 1906, and was not served on him on the thirty-first day of October, 1906, as set forth in the affidavit of service of Charles S. Johnston on file herein, or at any other time than on said first day of November, 1906." The motion was not accompanied by any affidavit of merits, or any verified answer, or any answer of any kind, nor was it accompanied by any statement that defendant had any defense of any kind to the action. On May 23, 1908, the court made an order finding that the summons was served on the first day of November, 1906, and not on the thirty-first day of October, and "setting aside the judgment heretofore entered on the twelfth day of November, 1906, and permitting the said defendant Eugene McGinn to file his answer to plaintiff's complaint."
The motion was not made under section
The entry of the judgment in this case was at most an irregularity; and, no doubt, if defendants had moved promptly or within a reasonable time, and filed the proper affidavit of merits, the court would have been authorized to give them relief, provided it found that the service was made on November 1, 1906, and not on October 31st. Instead of pursuing this course the defendants waited an unreasonable time, during which time the plaintiff had incurred expense, and then did not even suggest that they had any meritorious defense or defense of any kind, but asked the court to set aside a judgment regular on its face for a mere irregularity.
It is a rule of universal application that a court will not set aside a judgment valid on its face, in a case where it had jurisdiction, except the party desiring to be relieved makes at least an apparent showing of honestly and good faith, by showing that he has a defense to the action on its merits. And this rule goes even further, and a preponderance of the decisions are to the effect that a court of equity, notwithstanding the alleged want of service, will not interfere to set aside a judgment unless it appears that the result will be other or different from that already reached. (Freeman on Judgments, sec. 498, and cases cited.) In Parrott v. Den,
In Gregory v. Ford,
While the quotation had reference particularly to courts of equity, the same rule has been applied in other cases; and particularly will the same rule be applied in this state where courts of law and equity administer the same relief. The language in Gregory v. Ford was quoted with approval in the latter case of Eldred v. White,
We have carefully examined the cases cited by respondent, but in our opinion, while they use language which to some extent gives countenance to his contention, they do not sustain him. *11
In Norton v. Atchison etc. R. R. Co.,
In Crescent Canal Co. v. Montgomery,
We conclude that the order is erroneous, and must be reversed, and it is so ordered.
Hall, J., and Kerrigan, J., concurred.
A petition to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on April 5, 1909, and the following opinion was then rendered thereon:
THE COURT. — The petition for rehearing in this court after judgment by the district court of appeal is denied.
The opinion of the district court of appeal reversing the order of the superior court is based upon two grounds: First, that the defendants had been guilty of laches in making their motion to vacate the default and that the motion should have been denied on this ground; second, that their application should have been accompanied by an affidavit of merits.
We are satisfied that the first of these positions is well taken.
We do not express any opinion upon the other question discussed by the district court of appeal, i. e., whether an affidavit of merits is required to accompany a motion to vacate a default where the ground of the motion is that the default was entered before the expiration of the time allowed by the law to the defendant in which to appear and plead. *12