Andres v. Armstrong

California Court of Appeal Mar 4, 1959 No. Civ. 18038Published

Before: Hanson

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Holding. The court affirmed an order setting aside a default and default judgment, holding that the trial court did not abuse its discretion in finding that the default resulted from an honest mistake or inadvertence regarding the deadline for filing an answer.

Issues

Whether the trial court abused its discretion in setting aside a default judgment under Code of Civil Procedure section 473.
Whether the term 'by' in a deadline agreement created an ambiguity sufficient to support a finding of mistake or inadvertence.

Disposition. affirmed

Quotations verified verbatim against the opinion

“Webster defines “by” as including “not later than,” or “during.””

“It seems elemental that regardless of the technical meaning of the word in question that there was an honest difference of opinion between respective counsel presenting a clear case of mistake or inadvertence.”

“Such orders are rarely reversed, and never unless it clearly appears that there has been a plain abuse of discretion.”

HANSON, J. pro tem.

This is an appeal from an order setting aside a default and default judgment—a type of appeal that is becoming much too common.

The plaintiffs in their complaint filed on May 3, 1957, alleged that they purchased from the defendants a lot for the purpose of erecting a dwelling thereon, which fact was known to defendants; that the defendants represented, among other things, that a paved road would be constructed alongside the property and the lot would be safe to build a dwelling thereon; that the representations were false.

Numerous extensions to answer had been granted by counsel for plaintiffs to counsel for defendants. Finally, on August 12, 1957, plaintiffs’ counsel mailed a letter to counsel for defendants in which he stated: "This is to advise that unless I should be served with an Answer in the above matter

Thursday, August 15, 1957, that I will enter Default.” (Emphasis added.) On receipt of the letter on August 13, 1957, counsel for defendant requested and was granted an additional oral extension which plaintiffs’ counsel by his affidavit stated was to authorize him to enter a default

August 19, 1957, unless a pleading was filed

“by

” said date and that written confirmation of said agreement was demanded of defendants’ counsel. The written confirmation sent reads as follows: ‘ ‘ Confirming our telephone conversation of this morning it is agreed that if the answer of J. R. Armstrong and wife are not on file

August 19, 1957, you will take their default. Default, however, will not be taken against the other defendants, giving us one week to submit an answer on their behalf. [Emphasis added.]

“We thank you for your many courtesies.”

The pleading, duly signed and notarized, was tendered for filing on August 19, 1957, but earlier in the day counsel for plaintiff had obtained the entry of a default and so the pleading was refused.

Thereupon, the defendants on August 29, 1957, caused to be filed a motion to set aside the default which recited that the default was taken against defendants through their and their attorney’s mistake, inadvertence, surprise or excusable

Andres v. Armstrong

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