Woodward v. Backus

20 Cal. 137 | Cal. | 1862

Cope, J. delivered the opinion of the Court—Field, C. J. concurring.

This is an appeal from an order setting aside a judgment by default. The points in the case relate to the sufficiency of the affidavits upon which the order was based. It is contended that the affidavits do not sufficiently excuse the negligence of the defendants, and are defective in failing to state the facts showing a valid and meritorious defense to the action. In making the order, the Court below was only required to exercise proper discretion; and the order must have been so plainly erroneous as to amount to an abuse of discretion, to justify interference on our part. We think it cannot reasonably be held that the discretion of the Court has been abused; and whatever may be our opinion of the strict propriety of the relief granted, we see nothing in the objections taken to authorize a reversal. It would have been better, perhaps, if the affidavits, instead of stating that the case had been fully and fairly represented to counsel, etc., in the usual form, had set forth the facts constituting the defense. We cannot, however, hold that the affidavits are insufficient in this respect, without departing from what is undoubtedly the settled practice, both in England and in this country. The Court below could have required a more specific statement, but whether it would do so or not was purely a matter of discretion.

Order affirmed.