61 Cal. 292 | Cal. | 1882
Lead Opinion
This was an action to recover an installment of rent alleged to be due and owing by the defendants on a contract of lease, dated April 15, 1880.
Defendants appeared and answered in the case, and judgment was rendered against them on April 14,1881. Six days afterwards their attorneys gave notice of motion for a new trial, and, on October 6, 1881, that motion was heard, upon a settled statement of the case, and denied. On the twenty-first of the same month the defendant, Leslie, gave notice of a motion to open the judgment and permit him to file a separate answer, upon the ground that the answer filed and the judgment taken in the case were the result of the mistake, inadvertence, surprise, or excusable neglect of himself and his co-defendant. It is out of this motion that the present con tention arises.
• But the mistake, inadvertence, surprise, or excusable neglect in the case, if any, was not attributable to Leslie. He, when a copy of the complaint and summons were personally served on him, sent them to his co-defendant, Beaty, and asked him to have the case properly defended. The latter wrote that that would be done, and, it seems, that he had covenanted to defend Leslie against any suits upon the lease. Upon that, Leslie gave no further attention to the case.
It does not appear that Leslie informed Beaty that he wanted any special defense interposed in the action. But Beaty knew that he himself only had renewed the lease, and that Leslie had not joined in the renewal. Yet, with full knowledge of the fact, Beaty neglected to state it to the attorneys whom he had employed to defend the case, and, in consequence, it was nob set up in the answer filed for himself and Leslie. On the contrary, the execution of the original lease on the fifteenth of April, 1879, and its subsequent renewal on the fifteenth of April, 1880, by both defendants, were admitted, and the only issue raised by the pleadings in
Under these circumstances, the neglect to set up in the answer any special defense which Leslie may have had, was chargeable to Beaty—it was not the neglect of Leslie. No cause is assigned which prevented Beaty from performing his duty, nor is any reason given why he did not perform it; his neglect, therefore, was not excusable—it was in fact wholly inexcusable; and as both defendants moved for a new trial in the case, and permitted the statutory time for opening the judgment on' the ground of neglect, mistake, etc., to expire, the present motion, if either parfcy was entitled to make it, after the denial of a motion for a new trial in the case, comes too late.
If by Beaty’s neglect Leslie has been deprived of any of his rights, he may be redressed by an action against Beaty; or if the judgment was taken against him by the actual fraud of the plaintiffs, or of the plaintiffs and Beaty, unmixed with negligence on his part, his remedy may be in an original action in equity to set aside the judgment. (Bibend v. Kreutz, 20 Cal. 109; Riddle v. Baker, 13 id. 295.) The motion for a new trial was not made as prescribed by Sections 658, 659, Code of Civil Procedure, and was properly denied.
There was no error in striking out portions of the defendants’ answer. One part contained a denial of indebtedness, another a covenant in the original lease, made in 1879, by which the lessors had agreed to make an improvement upon the leased premises “ on or before the first of August, 1879.” The improvement was not made, and for not making it the defendants asked damages; and the other party set up a failure to repair. There is no covenant to repair in the lease of 1879, or in that óf 1880, and the former covenant had ended.
A denial of indebtedness is the denial of a conclusion of law. There is no covenant in the ’ lease of 1880 about improvements on the premises leased in 1879. All the installments of rent due had been paid, except the last installment on the lease of 1880, which the action was brought to recover. The matter struck out was, therefore, irrelevant and redundant.
The motion to file an amended and supplemental answer
Judgment and orders affirmed.
Myrick, J., concurred.
Concurrence Opinion
I concur. The motion to open the judgment came too late, as the judgment was entered more than six months before the motion was made. (C. 0. P., § 473.)
