Dahlin v. Moon

THE COURT.

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

Defendants had originally noticed a motion to set aside the judgment only. The notice was amended to include the setting aside of the default, the amended notice being served on plaintiff’s attorney immediately prior to the hearing with permission of the court. The motion was supported by an affidavit of defendants’ attorney, which stated in substance the following:

The judgment was obtained through said defendants’ and their .counsel’s inadvertence, surprise and excusable neglect. The attorneys of the parties had been in extensive correspondence with each other since August 1953 about the dispute involved in the action and its settlement. The parties were in contact for the saíne purpose. Defendants, who are husband and wife, were served with summons on June 15, 1954, without affiant, their attorney, being informed of that fact. They brought the papers to affiant on June 28 only, because of temporary absence of the husband. Affiant, who was preparing to leave on vacation, telephoned plaintiff’s counsel on July 2d, 1954, and told him that he was leaving on vacation for one or two weeks and asked for additional time to plead. He then heard that default had been entered on June 29th without any information having been given him. Plaintiff’s counsel advised further settlement discussions with defendants. Affiant said he would do so immediately on his return from vacation and requested that until that time no judgment would be taken. Plaintiff’s attorney assured him twice that nothing further would be done until affiant contacted him. However, on his return from vacation on July 15, 1954, he found a letter of his opponent dated July 7 in which counsel stated that he would take judgment unless he heard further by July 13. On telephoning plaintiff’s counsel he was told that on the 13th judgment had been taken; “his client ordered

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him to proceed.” The judgment had actually been taken on the 15th of July. When the court then asked whether plaintiff’s attorney knew whether defendants had had legal advice, he told the court only that an attorney had called on July 2d and had asked to hold the default, and he introduced a copy of his letter of July 7th stating that he had not had any answer to it. Affiant had informed defendants that they had a good defense and affirmative right in the action. An answer and cross-complaint to be filed was attached to the affidavit.