Reidy v. Scott

53 Cal. 69 | Cal. | 1878

By the Court :

If the affidavit of merits is sufficient, we are satisfied that, under the views expressed in Watson v. S. F. and H. B. R. R. Company, 41 Cal. 17, the Court should have granted the motion to open the default. The answer, which was filed on the same day the default was entered, states facts which, if proved, would constitute a meritorious defense. The statements in the affidavit of defendant, that he is advised that he has a “ good and perfect defense,” and in the affidavit of his attorney that, in his opinion, defendant has a good defense; although in artificial averments of the fact that he has a defense on the merits, are to be referred to the answer actually filed. In People v. Rains, 23 Cal. 129, the affidavit of the defendant’s attorney was to the effect that he had mistaken the day of service, and that he prepared a demurrer to the complaint. The Court held that when the affidavit shows that the defense rests on matters appearing on the face of the complaint, (by which, of course, is meant matters of defense which, except for the interposition of a demurrer, would be deemed to be waived) the defense is merely of a technical character, and the affidavit is insufficient. But here an answer was prepared, and the advice of the attorney, that defendant had a good and perfect defense, was based on a full and fair statement of all the facts of the case. (See defendant’s affidavit.) We think the default should have been set aside.

Judgment and order reversed, and cause remanded.