77 Cal. 150 | Cal. | 1888
This action was commenced on the twenty-fourth day of December, 1884, to recover the sum of five hundred dollars for legal services alleged to have been rendered by the plaintiff at the request of defendant, and a general demurrer was interposed to the complaint.
The demurrer was overruled on the fifteenth day of January, 1885, and the defendant was given twenty days from that date in which to file its answer. It does not appear from the record that any notice of this order overruling the demurrer was ever served upon the defendant. No answer was filed up to the fifth day of February, and on that day the clerk of the court entered a default and a judgment against the defendant for the amount prayed for in the complaint, with costs. On the
1. Section 476 of the Code of Civil Procedure provides that “when a demurrer to any pleading is sustained or overruled, and time to amend or answer is given, the time so given runs from the service of notice of the decision or order.” If the notice required by this section was not given or waived, the time to answer had not expired when the default was entered, and for that reason the motion should have been granted. And if the notice was given or waived, the appellant should have made that fact to appear in the record.
2. Applications to set aside defaults are addressed to the sound legal discretion of the trial court, and if granted, the orders are never disturbed by this court, except in cases of gross abuse. (Roland v. Kreyenhagen, 18 Cal. 455; Howe v. Independence Co., 29 Cal. 73; Watson v. (S. F. & H. B. R. R. Co., 41 Cal. 20; Cameron v. Carroll, 67 Cal. 500.)
We see no clear abuse of discretion here. The affidavit of merits was sufficient, and the other affidavits show at least plausible reasons why the answer was not filed within the time allowed.
We advise that the order be affirmed.
Foote, C., and Hayne, C., concurred.
For the reasons given in the foregoing opinion, the order is affirmed.