Miller v. Cortese

WOOD (Parker), J.

Appeal from an order setting aside a default and the judgment entered thereon, and from an order refusing to vacate the order setting aside the default and judgment.

This action to recover $20,000 as a real estate broker’s commission was commenced on July 1, 1948. Plaintiff is the assignee of the broker, Alden B. Coyne. The defendants-named in the complaint were Ross W. Córtese, M. H. Bershin, Doe One, Doe Two and Doe Three. A return of service of summons and complaint shows that the summons and complaint were served on “Mike E Dinow, sued herein as Doe One,” on August 31,1948. On September 16,1948, an amendment to the complaint was filed naming Mike E. Dinow as

[102]

defendant in place of Doe One. On September 17, 1948, the plaintiff caused the default of Dinow to be entered. On September 23, 1948, plaintiff dismissed the action as to defendants Córtese and Bershin. On October 11, 1948, a default judgment for the amount prayed for was entered. On November 15, 1948, Dinow filed a notice of motion to set aside the entry of default and the default judgment, and in support of said motion he filed his affidavit, an affidavit of his attorney, Louis Warren, and an affidavit of Bershin. Also on November 15, 1948, Dinow filed his verified answer in which he denied the material allegations of the complaint. At the time of filing said documents (said November 15th), Dinow paid the county clerk’s filing fee of $5.00. The answer was not attached to the notice of motion but was a document separate therefrom. The filing stamp of the county clerk, appearing on the front page of the answer, states in part: “Filed Nov 15 1948.” Another stamp of the county clerk, also appearing on the front page of the answer, states: “Paid Nov 15 1948 W. G. Sharp County Clerk 5.” The register of actions in the county clerk’s office shows, with respect to the filing of the answer, as follows: “1948 Nov. 15 Ans. of deft. Mike E Dinow to comp, filed Louis Warren 5-.” On November 30, 1948, Dinow filed an amended notice of motion to set aside the entry of default and the default judgment, which notice stated that the motion would be made upon the grounds of mistake, inadvertence, surprise and excusable neglect. The notice also stated that the amended motion would be based upon Dinow’s answer which had been served and filed. (The answer was filed at the time the original notice of motion was filed.) On December 2, 1948, the “Amended motion” to vacate the entry of default and the default judgment was granted. The minute entry on said date states in part: “Amended motion is granted.” No order was made as to whether Dinow should file another answer after the amended motion was granted or as to whether Ms answer which had been filed should stand as his answer. Dinow did not file another answer. Plaintiff appealed from said order granting said amended motion. On April 27, 1949, while plaintiff’s appeal was pending, plaintiff filed another request for entry of default of defendant, stating in said request that no stipulation or order had been made that the “proposed pleading” filed with said motion should be considered the answer of defendant Dinow. A default was not entered upon that request. The order appealed from was affirmed