Miller v. F. M. W. Drilling Co.

California Court of Appeal Apr 13, 1956 No. Civ. 5305Published

Before: Barnard

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Holding. The court held that the trial court did not abuse its discretion in setting aside a default judgment where the defendants acted promptly upon learning of the action and where the clerk lacked authority to enter a default judgment on claims requiring proof of reasonable value.

Issues

Whether the trial court abused its discretion in granting a motion to vacate a default judgment based on a showing of excusable neglect.
Whether a clerk has the authority under Code of Civil Procedure section 585 to enter a default judgment for claims based on the reasonable value of goods and services.

Disposition. affirmed

Quotations verified verbatim against the opinion

“It is well settled that the granting of relief of this nature is a matter in which the trial court has a wide discretion, that this discretion should be exercised in the interest of seeing that justice is done”

“The clerk has no such power where the taking of any evidence is necessary. It has been held that where the reasonable value of services or goods must be determined evidence is required, and that in such a case the clerk is not authorized”

BARNARD, P. J.

This is an appeal from an order granting a motion to vacate and set aside a default judgment as against the defendants F.M.W. Drilling Company, a partnership, and Frank Frost and James McKay as partners, and granting a motion to recall an execution.

The complaint in the action was filed on December 28, 1954. It alleged that Frank Frost, James McKay and Marion J. Weller were partners doing business as F.M.W. Drilling Company; that Carl C. Weller was the manager of this partnership; that on June 1, 1954, plaintiff was employed on behalf of the partnership by Carl C. Weller to construct a certain oil drilling derrick; that the partnership and each of the partners thus promised to pay the plaintiff $500 per month as wages; that he worked four and one-half months; and that a balance of $1650 as such wages was unpaid and due to him. It was further alleged that the defendants hired from the plaintiff a 300 Amp. arc welder which was used for 1,200 hours for their benefit; that $3.00 per hour is a reasonable rental for this use, and $3,600 became due to the plaintiff as such rental; that defendants hired from the plaintiff a truck, and $300 is a reasonable sum for the hire of said truck; that plaintiff also furnished to the defendants various materials used in the construction of said rig; that the defendants promised to pay what said materials were reason

[730]

ably worth at the time they were furnished; and that said materials were then reasonably worth $1,700. The prayer was for $7,250, with interest at 6 per cent from October 16, 1954.

Summons was served on Marion J. Weller in Fresno County on December 29,1954. On December 30, 1954, counsel for plaintiff wrote to Marion J. Weller stating that he was mailing the complaint and summons to Frost and McKay (at what address is not stated), and asking her to contact them and advise them that she had been served and that the partnership was being held responsible, and stating that this mailing, “together with notice from you, a copartner,” will be sufficient to put Frost and McKay on notice of the action. The default of the F.M.W. Drilling Company, a copartnership, and Marion J. Weller was entered by the clerk on January 14, 1955. Also on January 14, the clerk entered a default judgment adjudging and decreeing that the plaintiff recover from the F.M.W. Drilling Co., a copartnership, and Frank Frost, James McKay and Marion J. Weller as co-partners therein, the sum of $7,358.75. This was the amount sued for plus interest at 6 per cent to date of judgment.

Miller v. F. M. W. Drilling Co.

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BARNARD, P. J.

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