Rahn v. Peterson

CONREY, P. J.

On January 16, 1922, at the close of the hearing on demurrer to the amended complaint, an order was made sustaining the demurrer and allowing the plaintiffs ten days to amend, and giving to the defendants five days to plead to amended pleadings or move to strike out. At the time of making the order the judge asked Mr. Shoemaker, one of defendants’ attorneys, if notice thereof would be waived; to which Mr. Shoemaker replied in the affirmative. Accordingly, the clerk entered in the minutes relating to said order the words “Notice waived.”

The second amended complaint wa.s served on the twenty-first day of January and filed on the 23d. On January

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30th, at 1 P. M., default of the defendants was ordered by plaintiff’s attorneys and entered by the clerk. At 4 o’clock of that day defendants filed a demurrer -to the second amended complaint, but after filing the same, the clerk discovered that the default had been entered and thereupon sent notice to the defendants’ attorneys that on account of said default entered, the demurrer could not be placed upon the calendar for hearing. On January 31st the plaintiffs brought the case before the court and introduced evidence, whereupon judgment was rendered, signed and filed in favor of the plaintiffs; This judgment was entered on February 2, 1922. On the first day of February the defendants gave notice of application for relief from the default and for order setting aside default and judgment; the motion to be made upon affidavits served and filed with the notice and upon proposed answer of the defendants, likewise served and presented for filing and upon the files, minutes, and pleadings in the ease. The affidavits included a sufficient affidavit of merits which was supported by the proposed answer which raises substantial issues of fact. At the hearing of the motion on February 3d counter-affidavits were filed on behalf of the plaintiffs. After hearing the motion the court made its order, from which this appeal is taken.

Appellants contend that the evidence fails to sustain the implied finding that the default was taken and the judgment rendered against the defendants through or by reason of mistake, inadvertence, surprise, or excusable neglect of the defendants, and that the granting of the motion was an abuse of discretion; and that the defendants did not present any sufficient grounds for relief under section 473 of the Code of Civil Procedure, the section which governs the instant case.