Will v. The Lytle Creek Water Co.

100 Cal. 344 | Cal. | 1893

Paterson, J.

This is an appeal from an order setting aside a judgment upon default.

Within the time allowed by law for answering, the attorney for the defendant herein filed a demurrer to the complaint, but this demurrer was entitled Glenn Will v. The Lytle Creek Water and Improvement Company. It appears that the mistake was made by the attorney’s stenographer, and that there is a corporation named the Lytle Creek Water and Improvement Company. The mistake was not discovered until two or three days after the default was entered, but defendant moved promptly to have the default set aside. As there was no laches, and the mistake was a very natural one, we think that the court did not abuse its discretion in granting the motion.

The affidavit of merits was sufficient. Although made by the attorney of the defendant, it is stated therein that the affiant is personally familiar with the facts connected with the transactions upon which said action is brought; that affiant knows of his own knowledge of facts which constitute a full, meritorious and legal defense to said action, that the defendant has a complete defense to said action. It cannot be said, as claimed by appellant, that it is impossible for this statement to be true. The affiant may have had satisfactory evidence, written and oral, that the claim of the plaintiff’s had been entirely settled and paid off, if any ever existed.

The affidavit is not objectionable on the ground solely that it was made by counsel for the defendant. (Byrne v. Alas, 68 Cal. 479.)

The order is affirmed.

Garoutte, J., and Harrison, J., concurred.