Van Dyke v. MacMillan

WARNE, J. pro tem.

*

Defendant has appealed from an order denying his motion under section 473 of the Code of Civil Procedure to vacate a money judgment entered against him after he failed to appear for trial through the excusable neglect or inadvertence of his attorney.

Plaintiff brought this action to recover a balance of $950 allegedly unpaid for hay sold by plaintiff to defendant.

The answer admits the contract; avers that by it defendant purchased 150 tons of hay baled for shipping at $13 per ton, delivery to be made at plaintiff’s ranch where the hay was stacked; and avers that the defendant paid plaintiff $1,000 on account and received delivery of 63.685 net tons.

The answer further avers that defendant was unable to receive delivery of any more of the hay because it was so “loosely, carelessly, negligently and improperly” baled and wired as to be unfit for trucking; that the hay was, as plaintiff knew, required for use on defendant’s cattle ranch in Sierra County; that by paying a premium hauling charge defendant was able to obtain trucking for the hay to the extent of 63.685 net tons, but no more.

By way of further answer and counterclaim it is averred that defendant was damaged in the sum of $172.10 by reason of a premium hauling price of $12 per ton which he had to pay by reason of the inadequate and improper baling and wiring of the hay by plaintiff. Further, defendant averred that the hay remaining undelivered on plaintiff’s ranch was ruined by rain because of the failure and refusal of plaintiff to protect it.

Plaintiff filed an answer to the counterclaim and the case was set for trial for January 30, 1957, at 10 a.m., and notice of time and place of trial, with affidavit of mailing of said

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notice to defendant’s attorney attached thereto, was filed' on November 28, 1956.

On January 24, 1957, appellant’s attorney sent the following telegram to the judge of the superior court:

“Because of protracted illness and partially tried ease Superior Court Los Angeles which will be on trial January thirty and for some time thereafter if my health permits will be unable to try case January thirty Van Dyke v. MacMillan Sutter County number eighty nine eighty five. Copy this telegram to attorneys for plaintiffs. Will forward affidavit for continuance. ’ ’