Roberts v. Wilson

SMITH, J.

This is a suit on the official bond of the defendant Wilson, against him as principal and the corporation defendant as surety, for alleged false imprisonment of the plaintiff by the former. Judgment by default was entered against the defendant corporation for the sum of $1,000, the amount of the bond, leaving the suit still pending against the principal. As appears from the return on the summons, the service of summons was made on one Louis, described as “a business agent of said defendant, ’ ’ personally. The defendant moved to quash the return; and the motion being denied, moved the court to set aside the default and to permit him to file an answer, which was presented in court. This motion

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was also denied; and the corporation defendant appeals from the judgment.

The last motion, we think, should have been granted. The only service in the case was on Louis, who y disregarded the service on the advice of counsel that it was of no effect. Whether this advice was correct, need not be considered. Nor, assuming the contrary, need we consider whether the negligence of Louis was excusable: It is sufficient that it appears without contradiction that the appellant itself had no notice of the service of summons until after the entry of the default; and as to it, therefore, the case is obviously one not “of excusable neglect” of the appellant (for there was no neglect of any kind), but of “surprise.” The decision of the court seems to have been rested upon the assumption that the appellant was answerable for the neglect of its soliciting agent; but we know of no principle upon which this can be claimed. It is also claimed by the respondent that the bill of exceptions contains no exception to the order refusing to set aside the default. But assuming, for the purposes of the decision, that the order was not made in the absence of the respondent, we think it must be regarded as “an interlocutory order or decision finally determining the rights of the parties, or some of them,” and that, therefore, an exception was unnecessary. (Code Civ. Proc., sec. 647.) The clause of the section cited, and also the clause, “an order or decision from which an appeal may be taken, ’ ’ were not contained in the original enactment, but were inserted by the amendment of 1876 (Stats. 1875-76, p. 91, c. 517), previously to which the court, on an appeal from an order made after judgment, refused to review the order for lack of an exception appearing.