Turner v. Frost

PREWETT, P. J.,

pro

tem.

The appellant brings this appeal from an order of the lower court refusing to set aside a default and judgment taken against him after failure to answer. The motion for the order was based upon the provisions of section 473 of the Code of Civil Procedure and was supported by affidavits. The judgment was entered on March 13, 1919, and this motion was noticed on August 26, 1919, and was so noticed to be heard on September 10, 1919, or about three days before the expiration of the statutory limit of six months. The appellant had notice as early as March 4, 1919, that his default had been entered. This was nine days before the entry of the default judgment. About two days before the entry of the default, the attorney for the appellant telegraphed to the judge of the trial court asking for an order granting additional time within which to answer, though he made no showing whatever in support of such request. The request was denied, though a longer period than the ten days sought actually elapsed before the judgment was entered.

Upon the showing thus far, there is no question that the appellant waived, by his laches, all right that he had ever possessed, to move to open the default. He claims, however, that he was misled by his own attorney. But on July 26th he retained another attorney, who on July 28th, gave notice of his appearance in behalf of the appellant and .substitution was on that day made. The appellant still continued inactive for about one month, when at the last moment he gave notice of his intention to -move for an order relieving him from the default. But whatever may be said of the showing made by the appellant—and even if it had been uncontradicted it would have been insufficient—it was entirely overcome by the counter-showing of the respondent. In fact, the showing is so strong and so clear that the appeal of the appellant must be regarded as frivolous.

[198]

On June 17th the respondent levied upon a large quantity of property, sufficient, according to the affidavits, to satisfy the judgment of $8,393. On or about April 18, 1919, the appellant was served with a citation to appear and answer as to his property. Failing to obey this citation proceedings in contempt was taken against him, and on June 17th he applied to this court for his discharge on