Stegge v. Wilkerson

SCHOTTKY, J.

Plaintiff, John P. Stegge, has appealed from an order setting aside default and vacating judgment and from an order quashing and recalling a writ of execution.

It appears from the record that on October 15, 1959, plaintiff brought an action against Everett Wilkerson and Herbert A. Hickey for the dissolution of a partnership and an accounting. It was alleged in the complaint that the three men had formed a partnership; that each was to contribute one-third of the capital; that each was to share in the profits and losses; that Stegge’s contribution greatly exceeded that of the defendants ; that the partnership had bills outstanding; that Stegge had sought an accounting from the defendants which

[3]

they had. not

granted;

and that the defendants refused to pay Stegge any sums due him as a result of payments by him in excess of one-third of the losses.

Summons was served on defendant, Everett Wilkerson, on October 16, 1959. Hickey was never served nor has he submitted to the jurisdiction of the court. Wilkerson did not answer or demur to the complaint and a default judgment, interlocutory in form, was entered against him on November 24, 1959, in the amount of $14,805.57.

On November 27, 1959, an order staying enforcement of the judgment was sought by Wilkerson. At 4:32 p. m. a stay order was granted by the court. However levy of execution was made.

On November 30, 1959, a motion to set aside the default was filed. The affidavit in support of the motion alleged that sometime after October 17, 1959, Wilkerson conferred with Stegge and they agreed that before the amount of money due Stegge could be determined it would be necessary to determine the amount due the creditors of the partnership; that Stegge agreed to go to Hollister and confer with the lessor of certain real property leased by the partnership; that Stegge would investigate the extent of the partnership obligations; that an appointment was made between the lessor and Stegge; that thereafter Wilkerson contacted Stegge and was informed that the trip to Hollister had not been made but that Stegge would make it shortly; that Wilkerson believed that the action could be settled by mutual agreement and he therefore neglected to consult an attorney; that without further notice to him a default was entered; and that immediately upon learning of the default Wilkerson consulted an attorney. Attached to Wilkerson’s affidavit was an answer to the complaint which denied that any moneys were due to plaintiff from defendant.