Sousa v. Capital Co.

BRAY, P. J.

Defendants appeal from an order vacating plaintiffs Sousas’ default and a default judgment thereon after plaintiffs failed to file a third amended complaint.

QUESTIONS PRESENTED.

1. May a clerk enter default for plaintiffs’ failure to amend complaint ?

2. Is the method provided by section 581, subdivision 3, Code of Civil Procedure, for the dismissal of an action upon failure of the plaintiff to amend complaint after demurrer sustained with leave to amend, exclusive ?

3. Was plaintiffs’ motion under section 473, Code of Civil Procedure, to set aside the default judgment, in time ?

[747]

4. Did the trial court abuse its discretion in setting aside the judgment ?

5. Was the application for relief supported by affidavit of merits and proposed amended complaint

1

RECORD.

Plaintiffs John H. Sousa, Hester M. Sousa and Central Office Building, a corporation, filed their second amended complaint against Capital Company, a corporation, Edward F. Ryan, John Sassell and several Does. On November 21, 1960, the general and special demurrer of defendants Capital and Sassell was sustained, as to the Sousas, who were given 15 days to amend. At the same time the motion of defendants Capital and Sassell to strike portions of that complaint was granted in part. Also, on stipulation, the demurrer of all defendants to that complaint was sustained without leave to amend as to plaintiff Central Office Building, and the motion for summary judgment made by defendant Ryan was granted. Notice of these decisions was served upon the Sousas on December 1. December 13, the Sousas’ counsel orally requested of defendants’ counsel 15 days’ additional time to file an amended complaint. On December 15 a stipulation extending the time of all plaintiffs including Central Office Building to December 30, to “move or take any other proceeding” of which they might be advised, was filed. On the same day, the judgment in favor of Ryan and against Central Office Building was signed and filed. December 29, a notice of appeal by all plaintiffs including Central Office Building from all parts of the judgment filed December 15, together with a notice to the clerk to prepare transcript, was served upon defendants. Thereafter defendants’ counsel extended plaintiffs’ time to file a third amended complaint until January 5, 1961, in a letter in which defendants’ counsel stated that he did not know the effect the appeal taken by plaintiffs would have in respect to further prosecution of the action in favor of the Sousas alone, but as a matter of courtesy he desired to call attention to the matter “and to keep your time open with respect thereto so that you could further consider the matter.” The Sousas thereafter sought no further extensions, either from court or counsel, nor did they ask for a stay.