Hayes v. Pierce

CRAIL, P. J.

On December 20, 1935, defendants’ demurrer to plaintiff ’s amended complaint was overruled and defendants were given five days within which to aiiswer. On December 27, 1935, defendants having failed to file an answer, default was entered against them, and on January 7, 1936, a judgment was rendered thereon. On March 9, 1936, defendants served upon the plaintiff their notice of motion to set aside default and default judgment, together with an affidavit of merits and a showing of inadvertence and excusable neglect, as well as a proposed answer and cross-complaint. From said affidavit, it appears that a former attorney for defendants, for some reason unknown to defendants, although directed by defendants to defend against the action, had failed to file the answer in time; that he informed defendants, even after default had been entered, that no default had been entered. The plaintiff, in his own affidavit resisting the motion to set aside the default says: “The said Downing [defendants’ former counsel], in support of said second demurrer and apparently as an excuse for failing to follow up said first demurrer, stated to the effect that

said first demurrer

[533]

was a mistake in that it had no prayer to it.

. . . That the said Downing in his said office stated to affiant in reference to said second demurrer and his said motion to strike to the effect that

he thought now that his troubles all would soon be over,

and from this and from

the prayer to said second demurrer

affiant gathered that said Downing meant that his proceeding would put pláintiff out of court and he would not have to answer; ...” Defendants, upon discovering the true facts, employed other counsel and made timely motion for relief against the default. Thereafter, on April 9, 1936, said motion was heard and granted on condition that defendants pay plaintiiff costs in the sum of $27.50 within ten days. On May 15, 1936, upon a showing to the court that the court’s condition had been complied with the court granted the order unconditionally setting aside the default and judgment.