101 Cal. 122 | Cal. | 1894
This appeal is from an order vacating and setting aside a default and judgment, and permitting the defendant to answer.
The application was based on many grounds, one of which was that the default was through excusable neglect, and the order was upon terms.
Suit was brought to rec )ver the value of certain shares of the corporate stock of the corporate defendant, on the ground that the said defendant refused to transfer the shares on its books and issue a new certificate to plaintiff, who was the purchaser and assignee of the stock.
Summons was served upon the secretary of the corporation, who was also a director, and it does not appear that any other officer of the corporation was aware of the controversy. The secretary, as he states in his affidavit, inquired of the plaintiff, who is a lawyer, if the fact that some of the defendants resided in another county would give all defendants thirty days within which to answer, and was informed that it would. For this reason he did not at once refer the matter to an attorney, but waited until he could see the regular attorney of the corporation, who resided at Los Angeles. But for this assurance he would have answered in time.
This is more than a mere mistake of law. The agent of the corporate defendant was misled, unintentionally no doubt, by the opposite party. Plaintiff should not be allowed to profit by this, even though it was with no design of gaining an unfair advantage.
There is a sufficient showing of merits. The affidavit shows that the corporation never did refuse to transfer
I think the order should be affirmed.
Belcher, C., and Vanclief, 0., concurred.
For the reasons given in the foregoing opinion, the order appealed from is affirmed.
Harrison, J., Garoutte, J., and Paterson, J.