W. J. Wallace & Co. v. Growers Security Bank

MARKS, J.

This is an appeal from an order denying defendants' motion to vacate their defaults and a judgment

[744]

rendered against them. The motion was made under the provisions of section 473 of the Code of Civil Procedure.

They thus briefly set forth in their opening brief many of the material facts of the ease: “On March 15, 1933, the Superintendent of Banks, acting under the then recent addition, section 135c, to the Bank Act (Deering’s General Laws, Supp. 1933, Act. 652), appointed a conservator for Growers Security Bank. Such conservator thereupon took possession of the property and assets of such bank as provided in the statute. Subsequently appellant succeeded the original appointee and at the time the complaint in this action was filed appellant was in charge of the affairs of the bank as the conservator thereof.

“Plaintiff filed its complaint on June 29, 1934. On the same day service of the summons and complaint was made upon appellant and upon E. A. Roberts as cashier of the banking corporation. On July 11, 1934, the twelfth day after such service, the defaults of appellant and of the said bank were entered and thereafter the default judgment from which relief is sought was rendered.

“On September 12, 1934, appellant served and on September 14, 1934, filed the notice of motion for an order vacating the said defaults and judgment. With the notice were affidavits reciting the facts relied upon on the motion and a proposed answer. Counter-affidavits were served and filed the day the motion came on for hearing and, before the matter was submitted and by leave of the court, a supplemental affidavit on behalf of the moving party was served and filed. On October 15, 1934, the lower court by its order denied appellant’s motion and from such order this appeal is prosecuted. ’ ’

We call attention to additional facts which we believe pertinent: Judgment was rendered on August 9, 1934. The motion was heard on numerous affidavits for both parties. E. A. Roberts was cashier of the defendant bank and set forth in his affidavit that the summons and complaint were served on the bank by delivery of the copies to him on June 29, 1934; that as Dike, as conservator, was in charge of the bank and its assets he delivered the documents to him on that day and “took no further action in the matter”. Dike averred that an attorney in Bakersfield was a director of the bank and had taken care of its legal business ’ ’; that either