City of Pacific Grove v. Hamilton

WOOD (Fred B.), J.

Defendant appeals from an order of the superior court denying his motion made under the

[509]

provisions of section 473 of the Code of Civil Procedure to set aside a default judgment.

The action is by the city for sewer rental charges, at the rate of $15 per year for a period of two years, for use of municipal sewer lines outside the city limits. Summons was served upon appellant on September 13, 1948. On January 5, 1949, respondent requested the clerk of the court to enter the default of appellant. On January 6, 1949, the default of appellant for failure to appear and answer the complaint was entered by the clerk. On January 7,1949, judgment in writing, designated “Decree on Default,” signed by the judge of the court, dated January 6, was filed. It recited that the default of appellant had been duly entered according to law and decreed that respondent recover judgment against appellant for $30 plus costs.

On June 25, 1949, appellant filed a notice of motion, with supporting affidavits, for an order “setting aside that certain Decree on Default in the above-entitled matter, which decree was dated January 6,1949.” On July 12,1949, a minute order was made denying appellant’s motion to set aside said default judgment.

On September 10, 1949, appellant filed his notice of appeal “from the order denying defendant’s motion to set aside default judgment dated the 6th day of January, 1949, which said order was entered by the above-entitled court on July 12, 1949.”

An application for relief, such as this, under section 473 of the Code of Civil Procedure, is addressed to the sound discretion of the trial court, an impartial discretion which must be guided and controlled in its exercise by fixed legal principles. [2] It should appear that something more than mere inadvertence or neglect without reasonable excuse or justification existed, and that the inadvertence or neglect in question was not the result of mere forgetfulness but was based upon other circumstances which would suffice to render the same excusable.

(Benjamin

v.

Dalmo Mfg. Co.,

31 Cal.2d 523, 525-526 [190 P.2d 593] ;