37 Cal. 247 | Cal. | 1869
Personal service of summons was duly made in this cause on defendant Rankin in the City and County of San Francisco, where the suit was pending, on the 25th March, 1868, and judgment was entered against him and others, in open Court, by default, on the 8th day of April, 1868. On the 9th April, upon his own affidavit, he obtained an order citing plaintiff to appear and show cause why the default and judgment should not be vacated and set aside and he be allowed to answer. The grounds of the motion to set aside the judgment were applicant’s inadvertency, mistake, and excusable neglect, and it was subsequently heard upon affidavit of applicant and counter affidavits, and denied by the Court, from which order Rankin appeals.
Without considering the counter affidavits, and resting the action upon defendant’s affidavit and judgment roll alone, it is by no means clear that he was entitled to the order asked, or
Orders denying or granting a motion to set aside a judgment by default, on the ground of mistake, inadvertency, surprise, or excusable neglect of the defaulting party, rest-very much in the discretion of the Court below, and will not be disturbed by this Court unless we are satisfied that the order is so plainly erroneous as to amount to an abuse of discretion. If there is room for doubt as to the sufficiency of the excuse offered, the judgment of the Court below will not be disturbed. (Bailey v. Taaffe, 29 Cal. 422, and cases there cited.)
The affidavit of the applicant, so far from disclosing a reasonable excuse for his neglect, tends rather to disclose a’ degree of negligence, carelessness, and lack of diligence hardly to be predicated of a prudent business man in a matter involving his bona fide claim of title to valuable real estate.
It does not appear that he was detained in Court as a witness after the 25th of March, the day on which he was personally served with summons, or that he was by any means prevented from devoting his entire time and attention to the matter of the summons during the ten days succeeding the day of service; yet no action was taken, and nothing was done by him during the time but to call at the office of a law firm in the city and ask to see a particular member of that firm, for the purpose of obtaining information as readily obtainable from numerous other sources equally accessible to him.
Under such state of facts, the Court below, in the exercise of a sound legal discretion, might well have adjudged the party chargeable with inexcusable neglect.
Order affirmed,- and remittitur allowed forthwith.
