Reilly v. Ruddock

41 Cal. 312 | Cal. | 1871

Lead Opinion

By the Court, Crockett, J.:

The default of the defendants for a failure to answer was improperly set aside: First—Because there was no service of the moving papers, and the application was heard and decided in the absence of the plaintiff’s attorney, who had no notice of the motion. This was error. (Vallejo v. Green, 16 Cal. 160.) Second—Ho reasonable excuse was given for the failure to answer within the proper time. The defendants had interposed a demurrer to the complaint, and the defendants’ attorney states in his affidavit that he was present in Court at the calling of the law calendar on the last preceding “steamer day,” and answered “Ready” when the demurrer was called for argument, but did not then argue it, because the plaintiff’s attorney was not present in Court; and that he did not know that the Court would entertain a motion concerning a demurrer except on the regular law days. The Court, in the meantime, had stricken out the demurrer, because, as we infer, it was deemed to be frivolous. But the attorney does not state that he had no notice of the motion to strike out the demurrer, nor when he was informed, for the first time, that it had been stricken out, nor that he supposed the demurrer to be still pending, until after the time for answering had expired. This was the only showing of diligence, and the only excuse offered for the failure to answer, and it was clearly insufficient.

Judgment reversed and cause remanded, with an order to the Court below to vacate the order setting aside the default of the defendants, and with a further order that the answer of the defendants be stricken out.

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Concurrence Opinion

Wallace, J., concurring:

I concur in the judgment upon the first point.