Hodge Sheet Metal Products v. Palm Springs Riviera Hotel

SHEPARD, J.

This is an appeal from the order granting defendant’s motion to set aside default, entry of default, and default judgment.

[655]

The facts presented by the record before us are as follows: February 23, 1960, plaintiff filed an action against defendants Palm Springs Riviera Hotel, Mark Schuman, Erwin Schuman, and fictitiously named defendants, for foreclosure of an alleged materialman’s lien in the alleged amount of $18,000.50, on certain real property. It alleged that all of the three named defendants were the owners of the property. The summons and complaint, however, were served only on Irwin Schuman, respondent herein. Instead of using a sheriff, constable or marshal, plaintiff’s attorney chose to serve the summons and complaint himself, which he did on March 9, 1960. On March 22, 1960, no appearance having been made in the action by respondent, plaintiff’s attorney filed his written request for default, the default was entered March 23, 1960, and judgment by default was entered March 25, 1960, against respondent alone, personally, and for foreclosure of the alleged lien. April 12, 1960, pursuant to the provisions of Code of Civil Procedure, section 473, respondent gave notice of motion to set aside the default, entry of default and judgment by default, on the ground,

inter alia,

that respondent’s failure to appear and answer the complaint within the time allowed by law was due to mistake, inadvertence, surprise, and excusable neglect.

In support of his motion, respondent filed his affidavit setting forth, in substance, that at the time of the alleged service of summons and complaint, he was approached by a person introducing himself as attorney for this appellant; that such attorney handed respondent a paper and stated he did so on behalf of this appellant who was claiming a mechanic’s lien against the hotel; that respondent then told said attorney that he was already aware of such lien; that a surety bond was in force from the general contractor to cover such liens; that therefore the lien did not affect respondent; that recourse lay against the surety bond; that the air conditioning installation involved in plaintiff’s lien was defective; that when such defects were corrected, respondent was certain appellant would be paid; that respondent and said attorney together then inspected the duct system; that at no time did said attorney say what the paper was; that as a result of the conversation respondent assumed the papers were nothing more than a lien claim not requiring immediate attention and that an attempt would be made to rectify the defects pointed out to