Mercantile Collection Bureau v. Pinheiro

PEEK, J.

Plaintiff’s complaint was filed in Merced County on October 15, 1946, and defendant was duly served

[607]

in Fresno County on October 17, 1946. On November 18, 1946, more than 30 days after service, default judgment was entered against defendant, and on the following day satisfaction of judgment was entered..

The record discloses no further action of any Mnd until January 27, 1947, when counsel for defendant moved to set aside said default judgment under section 473 of the Code of Civil Procedure upon the ground that the same was taken against him through “mistake, inadvertence, surprise or excusable neglect, ’ ’ which motion was denied by the trial court, and it is from this order that defendant has appealed. The motion was accompanied by the proposed answer of defendant and the affidavits of F. Louis Gomes, one of his counsel, and Virginia Johnson, a legal stenographer in the office of said counsel. The Johnson affidavit, after reciting the fact of her employment, stated that on October 16, 1946, she had prepared a demurrer in said action and typed a letter addressed to the attorneys for plaintiff at 1812 L. Street, Merced, California; that she also prepared an affidavit of mailing of said demurrer but that through error the envelope enclosing a copy of said demurrer and affidavit was addressed and mailed to plaintiff’s counsel at 1812 L. Street,

Fresno,

instead of

Merced.

The affidavit of Attorney Gomes, after reiterating the error of the secretary in addressing the envelope, averred that according to the information given him by defendant he [defendant] was served with summons on or about October 18, 1946; that the letter enclosing the copy of the demurrer which was mailed on November 16, 1946, was returned to his office on the morning of November 19, 1946. He immediately called Mr. McCormick, one of plaintiff’s counsel at the latter’s office in Merced, and upon being informed that McCormick was out of town he conferred with McCormick’s secretary, informing her of what had happened. He knew nothing of the default judgment until informed by McCormick on November 20, that the same had been entered on November 18, 1946. Mr. Gomes further averred that solely by reason of the error in addressing the envelope the timely appearance by defendant was prevented. No attempt to explain or excuse the failure to file the demurrer with the clerk within the time required was made. Obviously the error in addressing the copy to the plaintiff’s attorney had no effect on defendant’s failure to timely appear. The proposed answer of defendant admitted the execution of the