Schreiber v. Duncan

GRIFFIN, J.

Plaintiff brought an action against defendant alleging faulty workmanship in certain structural improvements in relation to the work done upon plaintiff’s residence by defendant in which plaintiff claimed damages in the sum of $1,832.50. Defendant was personally served with summons and complaint on March 23, 1951. He failed to appear. Default, upon application of plaintiff, was entered on April 4, 1951, and on April 5th, the clerk, for some undisclosed reason, entered judgment by default for the amount claimed. On July 5, 1951, three months later, Attorney Catalano filed his affidavit and motion to set aside the default and default judgment, claiming that on March 27, 1951, defendant retained him as his attorney and gave him a copy of the summons and complaint served upon him and that, due to pressing business and ill health, he mislaid it; that on or about April 4,1951, he attempted to file a demurrer with the clerk and was informed that a default had been taken; that about 10 days after April 4th, he talked with the attorney for plaintiff and asked him if he would enter into

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a stipulation setting it aside; that the attorney told affiant' that it would be necessary for him to file a notice of motion to set it aside because of the peculiar relationship between plaintiff and his attorney; that affiant told said attorney that within due course he would file such a notice; that the attorney for the plaintiff did not, at said time, commit himself either one way or another about resisting said motion; that about that time affiant was in partnership with one H. E. Schmidt, who was severely ill and who expired on May 15th; that affiant, for more than six months prior thereto, was required to do about 90 per cent of their partnership business; that at that particular time affiant was physically handicapped and was pressed with a great deal of work and was laboring under the thought that he had six months’ time from the entry of default within which to file his motion and believed that three months thereafter was not unreasonable; that defendant had a good and meritorious defense to plaintiff’s action, and did not owe any portion of the amount claimed. An affidavit of merit was also filed.

The motion came on for hearing on July 23. Plaintiff’s counsel appeared and no one appeared for defendant. The court (Judge Bradshaw) denied the motion.