Etchepare v. Ehmke

THE COURT.

On June 7, 1954, pursuant to a telephone conversation with defendant’s counsel, plaintiff’s attorney phoned the clerk for a trial date, prepared a stipulation “that the above entitled matter now off calendar subject to being reset 30 days from March 31, 1954, be set for trial September 22, 1954, at 9:15 a. m. in Department 1 of the above entitled court, without prejudice to either party, ’ ’ and forwarded it to defendants' attorney for his signature. On June 11th, the signed stipulation was received by plaintiff’s attorney with a covering letter from defendants’ counsel. The stipulation was filed June 18, 1954, and on the same day, pursuant thereto, the cause was so set for trial.

September 22, 1954, there being no appearance on behalf of defendants, plaintiff’s attorney phoned the office of defendants’ attorney and “spoke to one who represented herself to be a secretary and also to another person who stated he was an associate of” defendants’ attorney; and said persons told him that defendants’ attorney “was out of town and that his secretary was away on vacation.” He informed the presiding judge of said conversations and the action was then transferred to Department 15 for trial. Plaintiff was sworn and testified and judgment was rendered in favor of Martine G. Etchepare as plaintiff and cross-defendant. Sep

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tember 28, 1954, judgment was filed providing “that plaintiff do have and recover from defendants the sum of $5,250.”

September 27th, the day before it was signed and filed, plaintiff’s attorney mailed to defendants’ attorney a copy of the judgment prepared by him. The judgment was entered on October 5, 1954, and notice of entry of judgment was mailed to defendants’ attorney on October 6, 1954.

March 31,1955, notice of motion to set aside judgment under section 473, Code of Civil Procedure, was served and filed. The motion specifies that the judgment was entered through the mistake, inadvertence, surprise, and excusable neglect of defendants and cross-complainants’ counsel, and is based upon the answer and cross-complaint and “the affidavit of J. Howard Sullivan” filed therewith, and upon all the records and files in the above entitled action.

The affidavit of defendants’ said attorney filed with said notice of motion is the only basis in the record on the instant appeal upon which relief under section 473 could have been granted. The relevant portions thereof are as follows: