Colvin v. Sibley

California Court of Appeal Apr 2, 1953 No. Civ. 4614Published

Before: Barnard

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Holding. The court affirmed the denial of the defendants' motion to set aside a default judgment, finding that the defendants failed to demonstrate excusable neglect and failed to present a plausible defense in their proposed answer.

Issues

Whether the trial court abused its discretion in denying a motion to set aside a default judgment for lack of excusable neglect.
Whether the proposed answer sufficiently established a plausible defense to the action.

Disposition. affirmed

Quotations verified verbatim against the opinion

“The affidavit filed fails to show any mistake, inadvertence, surprise or excusable neglect.”

“The matter of granting relief from such a default rests largely in the discretion of the trial court, and its action will not be disturbed on appeal unless it clearly appears that this discretion was abused.”

“It further appears that the proposed answer failed to disclose that a plausible defense to the action existed.”

[145]

BARNARD, P. J.

The defendants have appealed from an order denying their motion to set aside their default and a default judgment entered against them.

A complaint was filed on January 10, 1952, seeking to quiet title to an acre of land in Fresno County. Summons was personally served in that county on January 15, 1952. On March 19, 1952, at the request of the plaintiff, the defaults of the defendants were entered. A judgment quieting title to the property in the plaintiff was entered on March 24, 1952, the decree reciting that evidence on the part of the plaintiff had been introduced. On April 23, 1952, notice was filed of a motion for an order setting aside the default judgment, and permitting the defendants to file an answer. The affidavit of defendant John R. Sibley and a proposed answer were also filed. This motion was heard on April 30, 1952, and after taking some evidence the court gave the defendants two days in which to submit an affidavit from their former attorney. On June 12, 1952 the court entered the order appealed from, the order reciting that the court had, on April 30, 1952, given the defendants two days in which to file the affidavit of their former attorney showing excusable neglect; that the time had been further extended; and that no affidavit or any further evidence had been brought before the court. This appeal followed.

The affidavit filed in support of the motion alleged that within 10 days after the service of summons the affiant took the summons to an attorney in Fresno; that he called on this attorney a number of times thereafter and was finally advised that it was advisable for him to raise a sum in excess of $5,000 to pay the plaintiff’s claim; that this attorney advised affiant that he would arrange for the matter to be continued; that finally, on April 19,1952, this attorney returned the complaint to the affiant; that affiant then learned for the first time that a default judgment had been entered; and that affiant then took the complaint to another attorney.

The proposed answer alleged that in December, 1945, the defendants bought an acre of land from the plaintiff for $1,250 and gave the plaintiff a note for that amount; that the plaintiff agreed to deliver a proper conveyance of the property; that defendant John R. Sibley performed “certain services” for the plaintiff “for seven and one-half years”; that during said time the defendants also borrowed “certain sums” of money from the plaintiff; that during said seven and a half years the defendants paid to the plaintiff sums of money far

Colvin v. Sibley

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BARNARD, P. J.

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