Slater v. Selover (1914) · DecisionDepot

Slater v. Selover

Name: California Superior Court Tentative Rulings
Creator: DecisionDepot
License: https://creativecommons.org/licenses/by-nc/4.0/

California Court of Appeal Sep 25, 1914 No. Civ. No. 1594.Published

Before: Shaw

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Holding. The court held that the trial court erred in setting aside a default judgment because the defendant failed to demonstrate excusable neglect and failed to provide a sufficient affidavit of merits.

Issues

Whether the defendant's failure to plead due to his partner forgetting the action constitutes excusable neglect.
Whether the defendant's affidavit of merits was legally sufficient to support vacating a default judgment.

Disposition. reversed

Quotations verified verbatim against the opinion

“We think the averments of the affidavit wholly insufficient to sustain the ruling of the court.”

“However this may be, the order is erroneous for the reason that no sufficient affidavit of merits was presented, without which the order could not be made.”

“Such affidavit should have shown that defendant stated all the facts of the ease to his attorney, and not merely those constituting his defense.”

Synopsis

The facts are stated in the opinion of the court.

SHAW, J.

This is an appeal from an order of court granting defendant’s motion to set aside his default and vacate the judgment entered thereon.

Deiendant was duly served with summons and neglected to plead within the time prescribed therefor. Whereupon his default for such failure was entered by the clerk, followed by the entry of judgment on February 27, 1914. On March 23d following, pursuant to notice thereof duly given, defendant, upon the grounds that he had a good and meritorious defense and that his failure to plead was due to mistake, inadvertence, and excusable neglect, moved the court to vacate the judgment and set aside the default and permit him to answer. This motion was supported by defendant’s affidavit to the effect that, when served with summons, he expected to be engaged in business out of town, by reason of which fact he gave the papers to one Whipple, his business partner, and instructed him to attend to the matter and have the action defended ; and supposing Whipple had followed his instructions he dismissed .the subject from his mind and did not discover such omission to answer until after default was entered. Whipple’s affidavit filed in support of the motion corroborates that of Selover, in addition to which he merely avers

[527]

that, upon the papers being delivered to him by Selover, he placed them in a pigeonhole, “and through mistake, inadvertence and excusable neglect did not have an answer put in said case, and forgot all about said action until March 12th. ’ ’

We think the averments of the affidavit wholly insufficient to sustain the ruling of the court. At the very most, disregarding the conclusion, since no other facts are stated from which the -court could find that defendant’s omission was due to mistake, inadvertence, and excusable neglect, it appears the defendant intrusted and delivered the papers to Whipple, instructing him to have the action defended, and Whipple, as he says, “forgot all about said action.” It would be difficult to conceive of a case possessing less merit.

However this may be, the order is erroneous for the reason that no sufficient affidavit of merits was presented, without which the order could not be made.

(Nevada Bank

Slater v. Selover

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Synopsis

SHAW, J.

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