Ochinero v. Wertz

STONE, J.

This is an appeal by plaintiff Ochinero from an order vacating the default of defendants Fred A. Wertz and Chester E. Wertz pursuant to motion under Code of Civil Procedure, section 473. The third defendant, Marion W. Irons, as to whom the motion was denied, has not appealed.

Defendant Chester Wertz, 63 years of age, farms in Stanislaus County, and his brother, Fred Wertz, aged 65, farms in Butte County. Their codefendant, Marion W. Irons, a self-styled businessman, prevailed upon them to invest in the trading stamp business in the San Joaquin Valley. Mr. Irons negotiated a contract for the three defendants to purchase the Valley Green Stamp Company from plaintiff. This action stems from that agreement. Copies of summons and complaint were served upon Chester Wertz September 19, 1960, and he turned them over to Irons, who was managing the Valley Green Stamp Company. Defendant Fred Wertz was served with summons and complaint on September 21, 1960, and he too turned the papers over to Irons. In each instance Irons agreed to get in touch with the plaintiff, to handle the matter and “straighten it out” for each defendant. On the other hand, each of the defendants Wertz admitted that he read both the summons and the complaint before delivering them to Irons. The Wertz Brothers continued with their farming activities, and left the lawsuit to be handled by Irons.

The record indicates that although Irons talked with plaintiff both in person and by telephone, he did little toward settling the dispute until near the end of the time for the Wertz Brothers to file an appearance. This was due primarily to his participation in a criminal action in Stanislaus County, Irons being the defendant. However, Irons alleged in his affidavit that prior to his becoming engrossed with his criminal trial, he discussed the instant action with the plaintiff, who told him not to worry and that the matter would be straightened out shortly. The record reflects, without contradiction, that on Friday, October 21, 1960, Irons called plaintiff in an effort to settle the litigation, and plaintiff suggested a meeting the following day, Saturday, October 22, with him and his attorneys. Irons and two other persons, who later were wit

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nesses at the hearing of the motion to set aside the default, met with plaintiff as requested. During the morning meeting plaintiff tried, without success, to call his attorneys. After lunch, the settlement discussion continued and plaintiff again attempted to call his attorneys, but without success. After additional settlement discussion, plaintiff suggested that Irons return the first part of the following week with defendant Fred Wertz for the purpose of settling the litigation.