Hadges v. Kouris

DESMOND, P. J.

Plaintiffs appeal from an order granting defendant’s motion, instituted under section 473, Code of Civil Procedure, to set aside a default and default judgment for failure to answer plaintiffs’ complaint and permitting him to plead thereto. In support of the motion three affidavits were filed, together with a copy of a proposed demurrer and a proposed answer on behalf of defendant. A counteraffidavit by Thomas C. Badges, one of the plaintiffs, was also before the court. The motion came on for hearing on August 25, 1944, was ordered submitted, and on August 29, 1944, the court made its order setting “aside default and default judgment.”

The granting or denying of a motion to relieve a party from default under section 473, Code of Civil Procedure, is a matter “addressed to the sound discretion of the trial court and in the absence of .a clear showing of abuse in the exercise thereof an appellate court will not disturb the order of the court below”

(Waybrighi

v.

Anderson

(1927), 200 Cal. 374, 375 [253 P.

148]);

especially is this true where the trial court grants the relief, after it has been promptly sought, and it does not appear that the plaintiff has sustained any prejudice thereby

(Weck

V.

Sucher

(1929), 96 Cal.App. 422, 424-425 [274 P. 579]);

The record in the present case indicates that on December 11, 1940, defendant (then plaintiff) recovered a judgment from plaintiffs (then defendants) in the municipal court in an action based upon (1) an open book account for goods, wares and merchandise sold and delivered and (2) an account stated for a balance due for goods, wares and merchandise sold and delivered. Almost three years thereafter, on November 13, 1943, plaintiffs filed an action in the Superior Court of Los Angeles County seeking to set aside this judgment on the ground of extrinsic fraud. No summons was issued on this complaint. Approximately seven months later plaintiffs amended their complaint. In addition to this

[215]