Appellee brought an action to recover from appellant $847 alleged due for music lessons given by appellee to two children of appellant up .to and including June 11, 1945. Action was filed and summons issued on June 9, 1948. The summons was returnable June 29 and was served on June 24.
' 'On July 12 appellant filed a motion to set aside entry of default and require ap-pellee to furnish a bill of particulars showing time and place of each lesson and amount charged therefor. He supported-his motion by an affidavit stating that when served with the summons he was under’ the belief the return day was July 29, instead of June 29, and did not consult counsel until July 7; that the statute of limitations was a defense to all or part of the claim; that without a bilk of particulars he was unable to say what part, if any, of the claim he owed; and that in any event he did not owe the full amount claimed.
The trial court denied appellant’s motion and thereafter appellee on ex parte proof obtained judgment for the full amount claimed.
Appellant contends that denial of his motion was an abuse of discretion. It is, of course, well settled that allowance or refusal of a motion to set aside a default is within the discretion of the trial court, but it is equally well settled that exercise of such discretion implies conscientious judgment which takes into account the law and the particular circumstances of the case. Burns v. United States,
Rule 50(d) of the trial court, based on F.R.C.P. 55(c), provides that for. good cause shown the court may set aside an entry of default and, if a judgment by default has been entered, may likewise set it 'aside, both in accordance with Rule 53. The trial court’s rule 53(b), based on F.R. C.P. 60(b), in part provides that on motion the court, upon such terms as are just, may relieve a party or his legal representative from a judgment, order, or proceeding taken against him through his mistake, inadvertence, surprise, or excusable neglect.' F.R.C.P. 60(b) is in turn based on section 473 of the California Code of Civil Procedure, and the Federal courts have held that construction of this rule should be in accordance with California practice. Fiske v. Buder, 8 Cir.,
These general rules are mere guides and each case must be decided on its own particular circumstances. Guided by those rules we find the following considerations existing in favor of appellant. There is nothing in the record indicating lack of good faith on his part and certainly there is no showing of a willful disregard or contempt of the process of the court. The fact that he was served only five days before the return day gives some basis to his claim that he was .not aware of his default until after it had occurred. He acted with reasonable diligence after realization of his default; he was in court in less than twenty days after he was served. He made a prima facie showing of the defense of the statute of limitations to at least a part of the claim; and such defense is . meritorious: Guaranty Trust Co. of New York v. United States,
Opposed to the foregoing considerations is the fact that appellant ■ was negligent in not reading the summons more carefully. Process of the court’ requires and demands respect. Appellant ought to have given more care to the summons, noted the return day and arranged for his appearance in court in proper time. We have .said before and we repeat that this court will not condone either willful or negligent disregard of court process, rules or orders. Cf. Barnes v. Conner, D.C.Mun.App.,
Judgment reversed and cause remanded for further proceedings in accordance with this opinion.
Notes
Unlike' the practice under the Fed-déral Rules of Civil Procedure, 28 U.S. C.A., summons in the Municipal Court is returnable on the twentieth day after is--su-ance.