This аppeal is from an order granting the defendant’s motion to set aside and vacate a judgment taken against it by default upon the ground that such default and judgment were the result of the excusable inadvertence and neglect оf the defendant. The facts preceding and attending the making and entry of such default and judgment as set forth in the affidavits filed in support of said motion and against the truth of which the appellants made no counter showing at the hearing thereon, are as follows: On January 4, 1924, the plaintiffs commenced this action in Alameda County against the defendant, а common carrier corporation operating automobile stages, to recover damages alleged to have arisen out of the happening of an accident upon one of its stage lines. On January 14, 1924, thе summons and complaint in said action were served upon the secretary of said corporation at its office in the city of Oakland, who at once delivered the same to one G. W. Tatterson, who was in charge of the traffic department of the defendant, with the direction that said summons and complaint, together with the file relating tо the accident, be delivered to W. E. Travis, the president of the corporation, immediately upon his return from Lоs Angeles, where he then was and from which he was expected to return within a few days. Said file was placed upоn the desk of Mr. Tatterson to await the president’s return, but prior thereto was inadvertently taken by one of the employees of the corporation—probably a stenographer in the traffic department —from the desk of Mr. Tatterson and returned to the compartment in which such files were ordinarily kept, and as a result thereof the attention of Mr. Tatterson, who was daily occupied with many details in connection with his immediate department, was withdrawn from said file, with the result that the matter was not called to the attention of the president upon his return, nor in fact until some days after the default of the corporation had been taken and judgment thereon entered against it fоr the full sum sought by the plaintiffs in the action. On March 17, 1924, several days after the entry of such judgment, Mr. Travis received a communication from the attorney for plaintiffs informing him of the entry of the judgment and demanding immediate payment of the whole amount thereof with interest and costs. He immediately took steps to ascertain the
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facts relating to the commencement of said action, the service of the papers therein, and the reasons why the matter had nоt theretofore been brought to his attention, of which facts he was up to that time entirely unfamiliar, and upon learning the same he presented the matter to the counsel of the defendant for appropriate action, which action in the form of said motion to set aside said default and" judgment promptly followed. The trial court uрon the hearing of the motion and presentation of the foregoing facts made and entered its order vacating and setting aside the default and judgment, from which order this appeal has been taken. We are of the opinion that the trial court was not in error in so doing. The application to be relieved from this default and judgment was made under section 473 of the Code of Civil Procedure, and was one addressed to the sound discretion of the trial сourt. It is a well settled rule of this court that the action of the trial court in the exercise of such discretion will not be set aside upon appeal unless an abuse of discretion clearly appears, and that any doubt thаt may exist in that regard should be resolved in favor of the application, to the end that a trial of the causе upon the merits may be had.
(Jergins
v.
Schenck,
The order is affirmed.
Finch, J., pro tem., Seawell, J., Curtis, J., and Waste, C. J., concurred.