Hover v. MacKenzie

VALLÉE, J.

Appeal by defendants and cross-complainants from: (1) an order granting plaintiff and cross-defendant’s motion for reconsideration of the denial of a motion to

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vacate and set aside a judgment; (2) an order setting aside and vacating an order denying a motion of plaintiff and cross-defendant to vacate and set aside a judgment; (3) an order setting aside and vacating the default of plaintiff and cross-defendant and a judgment.

Plaintiff filed the action, apparently to quiet title. The complaint is not a part of the record. Defendants filed a cross-complaint naming plaintiff as cross-defendant in which they sought a decree quieting their title to a parcel of realty. Plaintiff answered the cross-complaint. The cause was set for trial. Notice of trial was given by the attorney for plaintiff to the attorney for defendants. Neither plaintiff nor his attorney appeared on the day of trial. The cause was then tried on the cross-complaint as a default; and on December 29, 1952, a judgment was rendered and entered quieting defendants’ title to the realty.

On March 12, 1953, plaintiff filed a notice of motion, supported by affidavits, to vacate and set aside the judgment of December 29,1952, on the grounds of mistake, inadvertence, excusable neglect, and that no findings of fact or conclusions of law had been served or filed. This motion was denied on March 25, 1953.

On March 31, 1953, plaintiff filed a notice of motion, supported by the affidavits previously filed and additional affidavits, to reconsider the order of March 25, 1953. On April 22,1953, this motion was granted; an order was made vacating and setting aside the order of March 25, 1953; and an order was made vacating and setting aside the default of plaintiff and the judgment of December 29, 1952.

Defendants appeal from the orders made on April 22, 1953. They claim the court abused its discretion in making them. The claim is without merit.

The affidavits made by plaintiff stated: At the time the complaint was filed, William Stein was his attorney. Stein wrote a letter notifying him of the date of trial. He lost or mislaid the letter, did not remember the date of trial, and was under the impression the case would be tried in the spring of 1953. He does not remember when he lost or mislaid the letter for the reason that he did not have any occasion to again look at the date of trial. He became dissatisfied with Stein and about March 6, 1953, retained Paul Shapiro as his attorney in the action. He did not remember Stein’s first name, and did not ascertain it until about March 9, 1953. He asked Shapiro to call Stein. Shapiro called one Louis