Porter v. Bryson

JAMES, J.

The sole question presented by this appeal is as to whether the trial court abused its discretion in setting aside the default of the defendant and judgment entered thereon. Three affidavits were presented by the defendant in support of his motion to set aside the default and the judgment ; also an answer the allegations of which raised material issues of fact, which answer was filed after the court had made the order which is sought to be reversed upon this appeal. The affidavit of the defendant set forth that the summons and complaint in the action were served upon him on the nineteenth day of November, 1915; that he delivered said summons and complaint on the same day to Robert B. Murphey, a deputy county counsel, and requested that the county

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counsel appear on his behalf in the actipn; that he did not know why no appearance was entered within the ten days prescribed by law. The affidavit of defendant further contained the statement that he had fully and fairly stated the facts and circumstances of the case to a deputy county counsel, one of his attorneys, and had been advised that he had a good and substantial defense on the merits of the action; that he believed the same to be true. Murphey’s affidavit, being one of the three filed, reads as follows:

“Robert B. Murphey, being first duly sworn, deposes and says: That he is an attorney, duly admitted to practice law in the courts of the state of California; that he is, and at all times mentioned herein has been, a deputy county counsel in and for the county of Los Angeles, state of California; that Frank Bryson, public administrator, the defendant herein, delivered to affiant a copy of the summons and complaint herein, and that affiant informed said defendant that he would turn the matter over to A. J. Hill, county counsel of Los Angeles County, who would assign said matter to one of the deputies in his office; that at the time said summons and complaint were handed to affiant, he inquired of said defendant as to the time of service of the same upon him, and understood defendant to say November 21, 1915, and further understood said defendant to say that it was on a Monday; that affiant thereafter indorsed upon the back of said complaint and summons the words and figures ‘Served Monday, November 21, 1915’; that on the same day that the said defendant handed said summons and complaint to affiant, affiant delivered the same to Emily W. Wussow, secretary to said A. J. Hill, county counsel.”