Denke v. Bowes

[643]

NOURSE. P. J.

Plaintiff appeals on a settled statement from an order granting defendant’s motion to set aside a default and default judgment.

On August 21, 1945, plaintiff as administratrix with the will annexed of the estate of E. H. Denke, deceased, commenced a suit against defendant upon a promissory note dated March 10, 1932, and payable on January 1, 1933, to E. H. Denke in the sum of $3,536.49. Summons was issued and served with a copy of the complaint on defendant in Alameda County on September 16, 1945. The default of the defendant was entered on October 17, 1945, and on October 18, 1945, a judgment by default was filed in favor of plaintiff in the sum of $2,986.49 principal plus $1,395.34, interest and $250 attorney’s fees.

Subsequently, on October 23, 1945, defendant filed a demurrer to plaintiff’s complaint based on the statute of limitations. Thereafter, on November 2,1945, defendant filed a notice of motion to be relieved from default on the ground that the judgment had been prematurely entered through the mistake, inadvertence and excusable neglect of defendant’s counsel. In support of the motion defendant filed an affidavit of merits made by defendant’s counsel stating that defendant was out of the state and could not be communicated with, that because of the defendant’s absence the affidavit was made by his counsel, that defendant "has made a full and complete statement of all of the facts in the above entitled cause to his counsel” and that he was advised by his counsel that he has a good and valid defense on the merits on the alleged cause of action set forth in the complaint. Further the motion was based upon "the demurrer to the complaint herein also served and filed herewith, and upon all other records and files in the above entitled cause. ’ ’

In addition an affidavit of defendant’s counsel was filed setting forth the following facts: On October 13, 1945, the defendant telephoned affiant and stated that he had been served with a summons and complaint in an action on a note, and told him all of the facts and his defenses. Affiant requested defendant to mail the papers to him and received them on October 15, 1945. At that time there was marked thereon the following: "Deliver to E. W. N. Bowes, 248 Monte Vista, Piedmont, California, ’ ’ and following that a pencil notation reading, "N.E. 10-11-45.” Affiant assumed that the latter notation was defendant’s notice to himself that the papers were served