McCauley v. Eyraud

PLUMMER, J.

Action by plaintiff for dissolution of partnership and accounting.

The record shows the following: Summons served on the defendant June 4, 1924. Default of the defendant in

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failing to answer the summons and complaint served in this action entered June 16, 1924. Default judgment dissolving partnership and appointment of commissioner to take an accounting entered June 24, 192'4. Accounting before the commissioner appointed by the court had on July 22, 1924, both parties appearing by attorneys. Eeport of commissioner returned to the court July 24, 1924. Objections to commissioner’s report filed by defendant July 31, 1924. Notice that application would be made to the court on the twenty-eighth day of August, 1924, to set commissioner’s report for hearing served July 23, 1924, and filed August 25, 1924. Notice of motion for order setting aside default and vacating decree and judgment served July 26, 1924, filed on August 28, 1924. August 15, 1924, minute order entered denying motion to vacate default and set aside decree and judgment. October 14, 1924, notice of motion for rehearing of defendant’s motion to set aside default served and filed. October 21, 1924, minute order entered on rehearing of motion to set aside default, granting motion upon condition that defendant pay to plaintiff $75 if trial results adversely to defendant. On the twenty-first day of November, 1924, plaintiff served, and on the twenty-sixth day of November, 1924, filed notice of motion to set aside and vacate the order of the court made on the twenty-first day of October, 1924, vacating and setting aside judgment entered by default, etc. On December 22, 1924, minute order entered granting the motion to vacate and set aside the order granting the motion to vacate the default judgment and reviving and restoring the default judgment. The appeal is prosecuted by the defendant from this last order.

The complaint sets forth that on or about the fourth day of February,. 1924, the plaintiff and the defendant entered into a contract of partnership in writing, whereby the parties agreed to conduct a laundry located at 1963 Weber Avenue, Willowbrook, California. That thereafter the defendant wrongfully excluded the plaintiff from participation in said partnership, and also refused to allow the plaintiff to examine the books and accounts of said partnership, and was retaining for himself all of the proceeds thereof. Dissolution of the partnership is prayed for, and also that a commissioner be appointed to take an account