Kester Motors, Inc. v. Haddad

GRIFFIN, J.

A complaint in 13 separate causes of action was filed on January 15, 1951, by plaintiff corporation against defendants for money claimed to be due it. The first count is predicated upon a memorandum of agreement between the parties whereby Mrs. George A. Haddad agreed to pay plaintiff $100 per week, commencing November 4, 1950, until $9,754.33 had been paid. This amount was for cars purchased by her from plaintiff. A promissory note in the same amount and for like payments was executed in connection therewith. It was alleged that $800 was due thereon. The second cause of action was predicated upon an open account for automobiles delivered to defendants in the same sum and on which it is alleged $1,433.50 had been paid. A third count alleges the sale of these same cars at $9,754.33, and that $1,435.90 had been paid thereon. The fourth to the thirteenth counts, inclusive, alleged that defendants drew various checks on a named bank in various sums in favor of

plaintiff;

that the checks had been presented to the bank and returned “not sufficient funds” and that the total due thereon is $4,781.89. Summons was served on defendants the same day and defendants immediately filed a general demurrer thereto, which came on for hearing on January 22, 1951. It was overruled and defendants were given 15 days to answer. Notice thereof was duly served.

According to the affidavit filed by the attorney for plaintiff, it is alleged that about February 8, 1951, he called the office of counsel for defendants; that the secretary informed him that more time was needed to answer; that he told the secretary that if an answer was not filed within the next day or two he would take default, and told her to so inform counsel for defendants; that instead of filing the past due answer, counsel for defendants obtained from the court, without notice to plaintiff, an extension of time to answer until February 15th. No answer was filed within that time and on February 20th default was entered. Counsel for defendants moved to set aside this default, predicated upon the affidavit of the secretary, that through mistake and inadvertence she failed to note the date on the calendar as to the last day to answer and did not discover such error until February

20th;

that an answer, containing only a general denial based on information and be

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