E. A. Strout Western Realty Agency, Inc. v. McCloud

California Court of Appeal Nov 23, 1938 No. Civ. 6117Published

Before: Thompson

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Holding. The court affirmed the order setting aside a default judgment because the affidavits supporting the motion were not part of the judgment roll and were not otherwise included in the record via a bill of exceptions or transcript.

Issues

Whether the trial court abused its discretion in setting aside a default judgment based on excusable neglect.
Whether affidavits used in a motion to vacate a judgment are part of the judgment roll and reviewable on appeal without a bill of exceptions or transcript.

Disposition. affirmed

Quotations verified verbatim against the opinion

“The affidavits which are presented to a court under the provisions of section 473 of the Code of Civil Procedure on a motion to vacate a judgment are not a part of the judgment roll.”

“it must be assumed the order is amply supported by the evidence and that the court did not abuse its discretion in granting the order.”

THOMPSON, J.

The plaintiff has appealed from an order setting aside a judgment by default. The motion on which the order was based was made under section 473 of the Code of Civil Procedure, on the ground of excusable neglect. It is contended the court abused its discretion in vacating the judgment, for the reason that the affidavit presented in support of the motion fails to show excusable neglect for not appearing and pleading to the complaint within the time allowed by law. This appeal is presented on the judgment roll only. The record contains no bill of exceptions.

The appellant filed in Butte County a complaint for broker’s commissions for the sale of real property. The defendant failed to demur or answer the complaint within the time allowed by law. Four days after the time to answer had expired, the plaintiff took by default. A judgment by default was accordingly entered. Thereafter the defendant moved to set aside the judgment for excusable neglect, under the provisions of section 473 of the Code of Civil Procedure. The motion was supported by an affidavit of the attorney for the defendant. A counteraffidavit of the attorney for the plaintiff was filed in opposition thereto. Upon hearing, the court made an order setting the judgment aside for excusable neglect, and directed the defendant to answer the complaint. From that order the plaintiff has appealed. No bill of exceptions was settled. The appeal is presented to this court on the judgment roll only. The affidavits are included with the record of the case. The clerk merely certified that the transcript contains full, true and correct copies of the papers and orders therein on file in his office.

It is contended on appeal the affidavits fail to show excusable neglect on the part of the attorney for the defend

[402]

ant and that the court, therefore, abused its discretion in setting aside the judgment.

The affidavits which are presented to a court under the provisions of section 473 of the Code of Civil Procedure on a motion to vacate a judgment are not a part of the judgment roll. (Sec. 670, Code Civ. Proc.; 2 Cal. Jur., p. 526, sec. 263;

State Bank of Lansing

E. A. Strout Western Realty Agency, Inc. v. McCloud

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THOMPSON, J.

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