Daniels v. Pitman

McCOMB, J.

Defendant appeals from orders denying (1) his motion to set aside a default judgment pursuant to the provisions of section 473 of the Code of Civil Procedure, and (2) his motion to reconsider the previous order.

Facts-.

Plaintiff commenced an action to recover the sum of $4,000 representing a balance of defendant’s indebtedness of $7,000 to plaintiff’s assignor which was evidenced by a writing executed by defendant.

The case was originally set for trial July 27, 1951, but due to the fact that certain depositions had not been returned it was ordered off calendar.

[346]

April 1, 1952, the commissioner appointed to take the depositions wrote a letter to the attorney of record for defendant enclosing copies of the interrogatories and cross-interrogatories put to the witnesses, and advising him that the original interrogatories had been transmitted to the clerk of the court. Thereupon plaintiff made a motion to have the case restored to the trial calendar and an order was entered setting the trial for July 31, 1952.

Notice of motion to restore the case to the calendar was mailed to the attorney of record for defendant enclosed in an envelope containing plaintiff’s attorney’s return address. The same was never returned to plaintiff’s attorney by the post office department. On April 17, 1952, plaintiff’s attorney received a telephone call from a woman who represented that she was Mrs. Rollinson, the wife of defendant’s attorney. She stated that her husband was due to come out of the hospital in about a week, and that it would take a little time for his recovery, and on that basis requested a continuance of the hearing of the motion to restore the case to the calendar. Plaintiff’s attorney advised her that since the case would be set for trial for sometime in the future no purpose would be served in continuing the hearing; that after the trial date had been set, notice of trial would be mailed to the attorney for defendant and if for any reason his health would not permit his trying the case on that date, plaintiff’s attorney would be willing to discuss with him a continuance of the trial.

On April 10, 1952, in addition to mailing to the attorney for defendant a copy of the notice of motion to restore the case to the calendar, there was mailed under separate cover a copy of a notice to produce. This document was never returned by the post office department to plaintiff’s attorney.