Hicks v. Sanders

MARKS, J.

This is an appeal from an order setting aside a default and a judgment obtained after default and permitting plaintiff to file an answer to defendant’s amended cross-complaint.

The bill of exceptions fails to contain any of the pleadings filed in this action. We glean some of the following facts from the brief of defendant.

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Plaintiff’s complaint was served and filed on June 15, 1939. Defendant filed his answer, counterclaim, and cross-complaint on June 23, 1939. A demurrer to the cross-complaint was sustained on July 17, 1939, with ten days within which to amend. An amended cross-complaint was served and filed on July 27, 1939. Plaintiff filed no pleading and her default was entered on August 9, 1939. Judgment on the amended cross-complaint was entered against her on August 12, 1939. On September 7, 1939, plaintiff filed a notice of motion to set aside the default and default judgment and specified that “Said motion will be made upon the following grounds: That said default and default judgment was entered through the mistake, inadvertence, surprise and excusable neglect of plaintiff and cross-defendant’s counsel”. Supporting affidavits were filed and the notice of motion was accompanied by plaintiff’s proposed answer to the amended cross-complaint. Defendant filed counter affidavits and a motion to strike plaintiff’s notice of motion and the supporting affidavits. On September 28, 1939, the trial court granted plaintiff’s motion and denied defendant’s motion. The order required plaintiff to pay to defendant, $18.50, costs incurred by him. This appeal from that order followed.

The affidavits disclose that plaintiff was sick in a hospital, and in her home, from July 4, 1939, to August 25, 1939. During much of that time she was attended by physicians and a nurse. She had an acute attack of bronchial pneumonia and in addition suffered an injury to her knee about August 18, 1939. It clearly appears that her condition was such that she could not attend to business until about August 26, 1939.

G. C. Thomas was the attorney in charge of plaintiff’s case. He left on his vacation on July 15th and returned on August 6, 1939. On the morning of August 7, 1939, plaintiff’s nurse, Mrs. E. P. Justice, saw him in his office and “at that time stated to affiant (Thomas) that plaintiff and cross-defendant was then seriously ill and although she was no longer at the hospital in La Jolla, as she had been between July 4th and July 15th, under the charge of Dr. E. F. F. Copp at the Scripps Metabolic Clinic, suffering from bronchial pneumonia, she was still in a very serious condition, and that any effort to carry on her business or any consultations with reference to the litigation might prove fatal to said