Doyle v. Rice Ranch Oil Co.

[19]

DORAN, J.

This is an appeal from an order vacating a default judgment in favor of defendant and against the plaintiffs.

A demurrer had been sustained to the complaint and to the first amended complaint. Defendant served notice on December 17, 1936, that the demurrer had been sustained with ten days' leave to amend. No amended complaint was filed before January 18, 1937, and on said date judgment was entered in favor of defendant and against plaintiffs. On January 29, 1937, plaintiffs served notice of a motion to vacate and set aside the default under section 473 of the Code of Civil Procedure, accompanied by an affidavit of plaintiffs’ attorney as well as a copy of the second amended complaint. On February 13, 1937, the motion ‘was heard and granted.

It is contended by appellant that the affidavit in support of the motion was insufficient, and that the second amended complaint did not state a cause of action. Both contentions are entitled to be sustained. The affidavit in support of the motion merely set forth that,affiant, Fred A. Shaeffer, one of plaintiffs’ attorneys, prepared the second amended complaint when informed by his associate counsel that he (the associate counsel) was unable to prepare the same by reason of the illness of his stenographer; that he, affiant, believed that the second amended complaint which he had prepared had been mailed but that he learned later that owing to the illness of his secretary said amended complaint had not been mailed; that upon discovery of the oversight on January 19th, the second amended complaint was forthwith mailed, and that affiant had no knowledge of the entry of the default until January 28, 1937.

The affidavit reveals neglect, but not excusable neglect. Carelessness and negligence are not akin to excusable neglect. (See Ross v.

San Diego Glazed C. P. Co.,

50 Cal. App. 170 [194 Pac. 1059] ;

People

v.

Rains,

23 Cal. 127 ;

Bailey