Fallon & Co. v. United States Overseas Airlines, Inc.

VALLÉE, J.

Appeal from an order denying a motion to set aside a default, the entry of default, and the judgment entered pursuant thereto.

The complaint was filed August 20, 1959. Summons and complaint were served on a vice-president of defendant on September 29,1959, in Oakland, California. Defendant having failed to appear in the action, the clerk on November 3, 1959, at the request of counsel for plaintiff, entered the default of defendant. The judgment appealed from is not in the clerk’s transcript. Inasmuch as the parties agree that a judgment was entered, we have augmented the record to include the superior court file. (Rule 12, Rules on Appeal.) Judgment was entered by the clerk on November 18, 1959.

On April 26, 1960, defendant moved to set aside “the default, and the entry of default, entered herein on November 3, 1959, and the judgment by default, entered herein on November 18, 1959” on the grounds of mistake, inadvertence, and excusable neglect on the part of defendant and its counsel. The motion was denied. Defendant appeals.

Affidavits and declarations were filed in support of and against the motion. There is little conflict in them.

On July 7, 1959, plaintiff’s attorney wrote defendant demanding payment of the claimed indebtedness and advising that if it was not paid suit would be filed. Defendant did not answer the letter. There were declarations to the effect that defendant owed plaintiff the amount sued for.

A short time before the action was filed Mr. Donahue, defendant’s advertising advisor, anticipating a claim by plaintiff, retained counsel in Santa Monica to handle whatever action arose, and left with him a “voluminous file” on the matter which he assumed contained everything the attorney might need to answer a complaint. About a week after September 29, 1959, the president of defendant delegated to Mr. Donahue the task of consulting the attorney whom Mr. Donahue had retained “to begin the defense to the suit,” and he presumed all necessary steps were taken to do so. Some time after the summons and complaint were served, Mr. Donahue contacted the president of plaintiff “to protest its merits and was assured by him that ‘it would be settled someway.’ ”

[549]

About October 25, 1959, he learned from the attorney that the complaint had been forwarded to him by the vice-president of defendant some 18 days previously. The attorney told him he “had only a ‘couple of more weeks’ to get to his office to prepare an answer to the complaint.” Their “schedules would not coincide to permit an appointment until on or about November 3, 1959, at which time in [his] presence counsel telephoned the attorneys for plaintiff to discuss the ease for the first time, only to be advised by them that a default had already been taken.”