202 P. 462 | Cal. Ct. App. | 1921
The appeal is from an order setting aside a judgment by default and permitting the defendant to answer. The motion for said order was based upon the ground of inadvertence, surprise, and excusable neglect. It *613
was supported by an affidavit of defendant and by oral testimony. The proceeding was taken under section
[2] If it should be thought that said affidavit was not sufficiently full in explanation of the delay of respondent in instituting the proceedings, we must remember that it was supplemented by parol proof. This not having been brought up, the presumption is, of course, that it furnished a complete and satisfactory excuse for any seeming remissness in that respect. The law is well settled that all intendments are in favor of the validity of the action of the trial court and of the regularity of the proceedings therein. (McGowan v. Kreling,
We may add that there is no virtue in the claim that the affidavit of merits is insufficient. Appellant in his quotation of it omitted this significant clause: "That affiant has fairly and fully stated the facts of the case." This is followed by the expression, "and those upon which he bases his defense to the above-entitled action," etc.
[3] Moreover, a verified answer was served and filed with the notice of the motion to set aside and vacate the judgment, and the motion, according to said notice, was based in part upon this answer. Therein was a denial of all the material *614
allegations of the complaint which could possibly be construed as entitling plaintiff to any relief. "A sworn answer positively denying the material allegations of the complaint is a sufficient affidavit of merits." (Fulweiler v. Hog's BackCon. Min. Co.,
We are not unmindful of the other points made by respondent which it is claimed should lead to an affirmance of the judgment, including the contention that the record is not sufficiently authenticated and that the complaint fails utterly to state a cause of action, but as the matter to which we have directed specific attention seems decisive of the controversy, any further consideration would appear useless.
The order is affirmed.
Prewett, J., pro tem., and Finch, P. J., concurred.