Jones v. Evarts

[497]

DRAPEAU, J.

Both of these appeals arise out of the same action and have been consolidated for decision by this court.

The appeal in No. 19170 is from orders denying (1) motion to set aside a default; and (2) motion to permit inspection of documents.

The appeal in No. 19271 is from the judgment entered subsequent to the default.

The record on appeal is incomplete in that the pleadings are not included. However, findings of fact which are the basis of the judgment appealed from disclose:

That plaintiff owned a piece of realty in Long Beach subject to an P.H.A. loan for $3,416.77, evidenced by a trust deed. In August of 1944, he sold this property to defendants for $4,400. Under the purchase agreement, defendants were to assume the trust deed, pay $300 in cash and the deferred balance of $683.23, with interest at 6.6 per cent per annum. Monthly payments on both the trust deed and the deferred payments were provided for until full payment of the latter. At that time, defendants’ liability for payment of the trust deed was to be substituted for plaintiff’s liability therefor, after defendants had obtained approval of F.H.A. Failure to so perform was to result in cancellation of the provision for assumption of the loan as a part of the purchase price. Defendants paid until June 2, 1948. On August 26, 1948, they were notified in writing by plaintiff of cancellation of the assumption clause in the agreement, at which time plaintiff demanded payment to him of the sum of $3,336.34 in monthly payments. Defendants refused and failed to comply with the terms of the notice.

The usual judgment quieting title in plaintiff followed. This was entered on February 20, 1952. In the meanwhile, the default of defendant Eugene F. Evarts was duly entered, to wit: on March 6, 1951.

Trial was had on January 25, 1952. On that date, defendants’ motion to set aside default on the ground of mistake, surprise and incapacity of their attorney, was argued and denied. On January 28, 1952, the following minute order was made: “Motion of defendant to set aside default against defendant and motion of defendant for order permitting inspection of accounts and documents come on for hearing and are ordered off calendar.”