133 P. 620 | Cal. Ct. App. | 1913
This is an appeal by plaintiff from an order vacating and setting aside a judgment by default entered against the defendant. *150
The action is for three thousand dollars, a balance claimed to be due from the defendant to one Harry G. McKannay, the assignor of the plaintiff, for services rendered in the capacity of attorney at law. The action was commenced on December 9, 1910; and some time in the latter part of the following February the defendant had obtained from the court by various orders all the time to answer which the court, under the provisions of section
The question thus presented by the record is, Did the court abuse its discretion in vacating the default and judgment against defendant?
We are not prepared to say that its action amounted to an abuse of discretion. "Applications of this nature are addressed to the sound legal discretion of the court below, and the order of that court, either in granting or denying the motion, will not be disturbed by this court, unless the appellant shall make it appear to have been so clearly erroneous as to amount to an abuse of discretion." (Williamson v. Cummings Rock Drill Co.,
It is not disputed that the court exceeded its jurisdiction in extending defendant's time to answer beyond the statutory period of thirty days; but the counsel who represented defendant at that time states in his affidavit filed herein that he believed those orders legal and valid; and that as he deemed a complete bill of particulars necessary to enable him to properly and fully prepare defendant's answer to the complaint, he deferred doing so, relying on those orders, until he should obtain such particulars. The judge before whom the cause was pending at that time having made these orders, must have believed that he had the power to do so and that the defendant was entitled to them; and as counsel for plaintiff, for aught that appears, did not himself question the regularity and validity of these orders until May 3d, it would seem that the judge who set aside the default of defendant was warranted in concluding that these circumstances constituted a fair and sufficient excuse for defendant's delay up to May 3d when the order staying proceedings was vacated.
As to the balance of time that elapsed before defendant answered, it is true that the motion to enter defendant's default *152
was pending for a little more than fifty days; but we cannot assume — nor are we in fact asked to assume — that the various. continuances of that matter were owing to the neglect or fault of the defendant, and "the delay in making the application after the judgment had been rendered was a matter," like other matters in the case, "to be considered by that court in determining whether to grant the relief, and the terms which it imposed as a condition of granting the motion must, in the absence of any contrary showing, be held to be ample compensation to the plaintiff." (Nicoll v. Weldon,
It appears from the record that defendant had a substantial defense and that he intended to contest the action. It also appears that no prejudice has been sustained by plaintiff by reason of the court's action, for when the action was commenced an attachment was levied, and thereafter it was released by the filing of the usual undertaking, approved by the trial judge; so plaintiff is secure in the payment of any judgment he may recover. Finally, to protect the plaintiff, the court, in opening the default, ordered the defendant to pay plaintiff's costs thus far incurred. In view of all these circumstances we feel that the case should be tried on its merits. The authorities sustain this view. "The granting or denying a motion to set aside the default of a defendant is so largely a matter of discretion with the trial court that, unless it is clearly made to appear that there has been an abuse of this discretion, this court declines to set aside its order. Especially are we indisposed to review its action when it has set aside the default, and it does not appear that the plaintiff has sustained any prejudice thereby." (Nicoll v. Weldon,
"A default inadvertently permitted by a party having a substantial defense presents a case in which great latitude should be extended to the discretion of the court by which the default was set aside." (Harbaugh v. Land Water Co.,
There is no merit in the contention that a mistake of law is not a "mistake" within the meaning of section
The order is affirmed.
Lennon, P. J., and Hall, J., concurred.
A petition to have the cause heard in the supreme court after judgment in the district court of appeal, was denied by the supreme court on July 25, 1913.
