Gore v. Witt

BARNARD, P. J.

The defendant has appealed from a default judgment, and from an order denying his motion to open and vacate the judgment of default and for other proper

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relief. These appeals have been consolidated and are presented on a clerk’s transcript.

On May 3, 1956, the plaintiff filed a complaint for the foreclosure of a mechanic’s lien in which he alleged that he was a contractor regularly and actively engaged in the business of leveling land; that in December, 1955, he entered into a contract with the defendant for the removal of trees from a certain 80 acres of land at the agreed price of $400; that on January 2, 1956, the parties agreed that the plaintiff should remove all trees and level this land in conformity with grade stakes placed thereon by a licensed surveyor, and the defendant agreed to pay him $400 for the removal of the trees and an additional $5,857.44 for leveling the land; that pursuant to these agreements and between January 10 and March 12 he removed all trees from the ground and stacked them on the property to be burned by the defendant, and completed the leveling work to the satisfaction of the said land surveyor ; and that on March 28, 1956, he recorded a verified claim and notice of lien, a copy of which was attached to the complaint.

A summons was issued on May 3 which, with a copy of the complaint, was served on the defendant on May 7 in Tulare County where he lived. On June 8, 1956, the plaintiff filed a request for entry of the default of the defendant and on that day the clerk entered that default. On June 14, 1956, after a hearing at which the plaintiff testified and the notice of contractor’s claim of lien and notice of lis pendens were received in evidence, the court ordered judgment in favor of the plaintiff in accordance with the prayer of the complaint. A written judgment and decree for foreclosure of mechanic’s lien was signed by the judge on June 15, and was filed and recorded on June 18, 1956.

On June 22, 1956, the defendant filed notice that on July 2,1956, he would move for an order vacating and setting aside the judgment entered and for such other relief as might be proper, and that the motion would be based on the grounds that the default judgment was taken against him through his mistake, inadvertence, surprise or excusable neglect. A proposed answer and counterclaim and two affidavits were attached to the notice of motion. The answer, among other things, admitted the agreement to pay $400 for the removal of the trees and admitted an agreement for the leveling work, but alleged that the agreed price for the leveling work was $5,208.64 instead of $5,857.44. It also denied that the work