177 P. 154 | Cal. | 1918
This is an appeal by plaintiffs from an order granting the motion of defendant Lewis to set aside his default entered for his failure to plead within the time allowed therefor by law.
By the same order the court vacated the judgment entered upon the default on the day that notice of the motion was filed, although neither the notice of motion nor the motion itself asked for such relief. We agree with the district court of appeal of the second appellate district, that if the default was properly set aside, there no longer existed any basis for the judgment, and the court was warranted in setting aside the same.
The motion was one under section
The notice of motion stated that it would be based upon "said answer and the affidavits attached hereto," but no copy of the answer was served with such notice. Section
The record on appeal prepared under section 953a et seq., of the Code of Civil Procedure, at the request of the plaintiffs, and stipulated as correct by counsel and settled by the trial judge, does not contain a copy of the proposed answer. There *401 is nothing, however, in the order granting the motion or in such record excluding the idea that the proposed answer, which admittedly had been served and offered for filing and was in the custody of the clerk, was brought to the attention of and considered by the court, as the notice of motion indicated it would be, and we think that in support of the action of the court it must be so assumed. We think, likewise, that in support of the action of the court, it must here be assumed that such answer stated a good defense on the merits.
We have considered plaintiff's contention that the matters shown in support of the claim that Lewis should be relieved from his default did not make a sufficient case for relief to warrant the action of the court, and have concluded that it may not fairly be held that the learned judge of the superior court was guilty of an abuse of the discretion committed to him in determining that a sufficient case was made to authorize the relief sought. It is only in a very plain case of abuse of discretion that this court will disturb the action of the trial court in a matter of this character, especially where the relief is granted and the application therefor is made as promptly as it was in this case.
In view of what has been said, no other point made requires notice.
The order is affirmed.
Wilbur, J., Sloss, J., Melvin, J., Richards, J., pro tem., and Lorigan, J., concurred.