89 Cal. 332 | Cal. | 1891
— The appellant is a California corporation, and, as such, on June 30, 1888, brought an action in the superior court of the city and county of San Francisco against the respondent, a foreign corporation, to recover damages for an alleged failure safely to carry and’ deliver certain goods, the property of appellant, from New York to San Francisco.
The summons was served upon Moses M. Stern, who is described in the affidavit of service as the business agent of the defendant. Judgment by default was rendered July 16, 1888. On the following day the defendant’s attorney obtained an order staying execution pending a motion to set aside the default. On July 19, 1888, the attorney for defendant gave notice of appearance in the action, and also of a motion to set aside the default and judgment on the grounds of mistake and inadvertence; and upon the following day the'paperg-served upon the plaintiff were filed.
The hearing of the motion was postponed, from time to time, by consent of both parties, and on November 23, 1888, the motion was stricken from the motion calendar by the court, in the absence of both parties, and on motion of defendant was restored to the calendar on January 8, 1889. On January 12, 1889, the defendant, discovering that the first application was defective, filed a new application upon additional affidavits, accompanied by a proposed answer to the complaint. This application purported to be a present application to the court “to vacate and set aside the judgment heretofore entered in said action against defendant, to relieve said defendant from the default judgment and other proceedings taken against defendant in said action after the
Both the original and amended applications were brought to a hearing on January 25, 1889, when plaintiff filed counter-affidavits contradicting some of the facts stated in the affidavits for defendant, and stating additional facts tending to show that the last application might have been made at an earlier date. The defendant then moved to dismiss without prejudice the first application, of which notice had been given on July 19th, and this motion was granted, against the objection of the plaintiff. The court thereupon proceeded to hear the second or amended application, and on January 25, 1889, made an order setting aside the default and judgment on the conditions that the defendant pay to the plaintiff $16.50 costs and $75 for counsel fees within ten days, and further ordering that the proposed answer filed with the application stand as the answer of the defendant.
The plaintiff has appealed from both orders, and contends that inasmuch as the first application was aban-_ doned and dismissed, the second application must stand, and be considered as if no earlier application had been made, and that it was not made within a reasonable time, because no motion was made in open court until after the expiration of six months from the date of the judgment; and that the modifying order was erroneous, for the reason that the moving affidavit was not served with the order to show cause; and that the money should have been tendered to plaintiff, and not to plaintiff's attorneys.
1. A view of the whole proceedings as disclosed by the record will show that the second application was, substantially, an amendment of the first by the addition of affidavits and a proposed answer; and for the purpose of determining the question of diligence, must be so regarded. The second application expressly refers to
The question as to what is “ a reasonable time,” short of the extreme limit of six months allowed by section 473 of the Code of Civil Procedure, within which application may be made for relief “from a judgment, order, or other proceeding,” etc., must depend upon the circumstances of the particular' case, all of which should be considered by the court. Where a delay has been assented to by the other party, or does not appear to have been injurious to his rights, the six months’ limitation prescribed by the code should be considered as the only limit of reasonable [time. In the matter of opening- defaults, much is confided to the discretion of the trial court. (Dougherty v. Nevada Bank, 68 Cal. 275; Chamberlin v. County of Del Norte, 77 Cal. 151.) And where the circumstances are such as to lead the court to hesitate, it is better to resolve the doubt in favor of the application, so as to secure a trial and judgment upon the merits. ( Watson v. S. F. & H. B. R. R. Co., 41 Cal. 17; Cameron v. Carroll, 67 Cal. 500; Lodtman v. Schluter, 71 Cal. 94.)
The application having been made within six months after the judgment, and within a reasonable time, the jurisdiction of the court to hear and determine it could not be lost by the expiration of the six months before the hearing. The limitation prescribed by section 473 of the Code of Civil Procedure is a limitation of the time within which the application must be made, and not upon the time within which it must be heard or determined.
2. But I think the court erred in vacating that 'portion of its former order requiring the payment of seventy-five dollars to plaintiff as a condition of opening the default. Having, in the proper exercise of its discretion, imposed this condition, it should not have been revoked on the showing made, which was, that plaintiff’s attorneys declined to accept the money for the mere reason that they feared that such acceptance might prejudice the right of plaintiff to appeal from the order opening the default. Under the circumstances, the court might, perhaps, have required the defendant to deposit the money in court to abide the event of the proposed appeal; for plaintiff’s attorneys may well have doubted as to the effect of their acceptance of the tender upon their right to appeal. (Cogswell v. Colley, 22 Wis, 399; Radway v. Graham, 4 Abb. Pr. 468; Lupton v. Jewett, 19 Abb. Pr. 320.)
The tender to plaintiff’s attorneys, however, was a sufficient performance of the condition to preserve the rights of the defendant under the order opening the de- / fault until the question of its validity should be determined. But in order to constitute the tender a payment, it must be kept good, and the plaintiff is entitled to receive the amount tendered upon the affirmance of the order setting aside the default judgment.
I think the order of January 25, 1889, setting aside the judgment by default upon the conditions therein stated should be affirmed, and that the order of March 8, 1889, vacating so much of the order of January 25th as requires the payment of seventy-five dollars for counsel fees should be reversed.
The Court. — For the reasons given in the foregoing opinion, the order of January 25, 1889, setting aside the judgment by default upon the conditions therein stated is affirmed, and the order of March 8, 1889, vacating so much of the order of January 25th as requires the payment of seventy-five dollars for counsel fees is reversed.