Moore v. Kellogg

58 Cal. 385 | Cal. | 1881

The Court:

The default of the defendants, Joseph Woodworth and Esther Woodworth, was regularly entered; the Court in the orders of default having found that the summons had been regularly served upon each of them. The default and judgment thereon were entered as to'Joseph Woodworth May 12th, 1879, and as to Esther Woodworth May 26th, "1879. Both of said parties move to set aside the judgments and defaults.

It does not appear from the transcript, as first filed, that the affidavits were used on the motion. Subsequently, and without leave, a document, called an “amended transcript,” was filed. Assuming that it is properly here, it does not aid the appellants. 1. It appears therefrom that after the commencement of the suit, and before the default, said defendants conveyed their interests in the premises in controversy to another, and their grantee does not join in the motion, nor ask to have the action continue in the names of the defendants; they, the defendants, had no further interest. 2. We can not see that there is any abuse of discretion in the Court below. The defendant, Esther Woodworth, after the service upon her, placed the copy of summons in the hands of her agent, who was attorney in fact for both the defendants, for the purpose of employing an attorney, and he neglected the matter; and Joseph Woodworth, in an affidavit, says he discovered on or about May 17th, 1879, that the default had been entered, and in the other affidavit he says he did not know any suit had been commenced or judgment entered against him until on or about September 16th, 1879. As early as May 26th, steps had been taken on behalf of and by both the defendants; in fact, long before the service of summons, both the defendants were watching for the suit. Under such circumstances, the Court below might well hold that the defendants had no ground for moving to set aside the judgments and defaults.

Order affirmed.