Yarbrough v. Yarbrough

California Court of Appeal Sep 25, 1956 No. Civ. No. 16835Published

Before: Peters

AI Brief

AI-generated · verify before citing

Holding. The trial court abused its discretion by setting aside a default judgment where the defendant's affidavit failed to establish excusable neglect, as merely mislaying legal documents without further explanation does not constitute a valid legal excuse.

Issues

Whether a conditional order setting aside a default judgment is an appealable order.
Whether the trial court abused its discretion in setting aside a default judgment based on the defendant's claim of 'surprise, inadvertence and excusable neglect.'

Disposition. reversed

Quotations verified verbatim against the opinion

“The order, in other words, is self-executing, and therefore appealable.”

“The cases are clear to the effect that where the defendant, with full knowledge of the proceedings, and without being misled by the opposing party or counsel, fails to take action to protect his interests until after the default, it is an abuse of discretion to set the default aside.”

144 Cal.App.2d 610 (1956) EMMA YARBROUGH, Appellant,

ROBERT YARBROUGH, Respondent.

Civ. No. 16835. California Court of Appeals. First Dist., Div. One.

Sept. 25, 1956. Phil F. Garvey for Appellant.

No appearance for Respondent.

PETERS, P. J.

In this action for separate maintenance the default of the defendant was duly taken, and a default judgment and decree entered. Thereafter, defendant moved to set aside his default. The motion was granted. The wife appeals.

[1] The appeal is presented on appellant's brief alone, respondent having failed to file a brief in support of the order. This failure imposes an unnecessary burden on this court, and at least raises the inference that respondent concedes that the appeal is meritorious. (Bendlage v. Kohlsaat, 54 Cal.App.2d 136 [128 P.2d 691]; Postin v. Griggs, 66 Cal.App.2d 147 [151 P.2d 887]; see discussion, 4 Cal.Jur.2d p. 334, 496.)

On December 6, 1954, the wife, appellant herein, in San Francisco, brought an action against her husband, respondent, a San Francisco resident, for separate maintenance, on the grounds of cruelty and wilful neglect, praying for $150 per month for support, plus certain other sums for hospital and medical care. Summons and complaint were served on respondent on December 30, 1954, in San Francisco. The summons bore on its face the standard provision that if served within San Francisco "You are hereby directed to appear and answer the complaint ... within ten days after the service on you of this summons ..."

"... that unless you appear ... the said Plaintiff will ... apply to the Court for any other relief demanded in the complaint."

On January 11, 1955, the respondent having failed to appear, appellant secured the entry of respondent's default. On January 18, 1955, respondent moved to set the default aside, the supporting affidavit merely averring in general terms that the default "was taken against defendant by reason of his surprise, inadvertence and excusable neglect" [613] without alleging any supporting facts. An affidavit of merits and a verified answer denying the major allegations of the complaint were also filed, as was also a cross- complaint for a divorce. On January 28, 1955, this motion to set aside the default was denied, without prejudice.

Yarbrough v. Yarbrough

AI Brief

PETERS, P. J.

More from California Court of Appeal

Related research

AI Brief