Bodin v. Webb

TYLER, P. J.

Appeal from an order granting a motion for relief under section 473 of the Code of Civil Procedure upon failure of defendants to appear at the trial. Three grounds are urged for a reversal. They will be discussed in the order made. ' The action is one for personal injuries. It was set for trial for March 6, 1936, in the Superior Court of Alameda County. On February 3, 1936, defendants received notice of the setting of the cause. Neither defendants nor their counsel having appeared on the trial day, plaintiff presented his evidence and judgment was rendered in his favor for the sum of $10,000. On March 16, 1936, defendants moved to set the default and judgment aside upon the grounds of mistake, inadvertence, surprise and excusable neglect. The motion was heard upon the supporting affidavit of one of the attorneys for the defendants and upon an affidavit of merits and upon the counter-affidavit

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of the attorney for the plaintiff. On May 1, 1936, the trial court granted the motion and set aside the default and judgment. By its order the court required defendants to pay to plaintiff $100 to cover costs incurred at the trial. This sum was tendered to plaintiff’s counsel on May 4, 1936, but was rejected. The reason for the failure of defendants to appear at the trial appears from the affidavit of defendants’ counsel and its sufficiency will be hereafter discussed.

Appellant’s argument in support of his first ground of appeal is that while a motion under section 473 of the Code of Civil Procedure is the, proper remedy to vacate a default entered for failing to plead to a complaint, the only remedy to vacate a judgment for failure to appear at the trial is a motion for a new trial on the ground of accident or surprise which ordinary prudence could not have guarded against. We cannot subscribe to this contention. The very language of the section (473 of the Code of Civil Procedure) negatives it. The pertinent portion of the section reads as follows: ‘ ‘ The court may . . . upon such terms as may be just, relieve a party or his legal representative from a

judgment, order, or other proceeding taken against him

through his mistake, inadvertence, surprise, or excusable neglect.” (Italics ours.) It has repeatedly been held that the section is applicable to judgments entered after trial for failure to appear.