Zuver v. General Development Co.

THOMPSON, J.

This is an appeal from a final judgment of rescission and from an order refusing to set aside a default judgment which was entered against the appellant for failure to appear at the trial of the case.

The plaintiffs executed an agreement with the General Development Company to purchase lots 1 and 2, block 5, tract 10263 in Los Angeles County. In payment for this property two promissory notes secured by trust deeds upon the lots were executed. One of these notes and trust deeds was transferred to the appellant. The plaintiffs took possession of the property and expended considerable money in making improvements. A suit was subsequently commenced against the General Development Company, the appellant and other defendants, to cancel the agreement, together with the trust deeds and notes on the ground of fraud. Damages for the cost of improvements were also sought. It was alleged the appellant claimed to be the owner and holder of one of the trust deeds and notes, ■ but that these instruments had been transferred to it without consideration. The appellant filed an answer alleging that it was the

bon a fide

owner and holder of that particular trust deed and note as the purchaser thereof for a valuable consideration. On information and belief the alleged fraud was also denied. Three other suits involving the same property were pending in Los Angeles County. They were consolidated with this case for trial. The consolidated cases were originally set for trial for July 7, 1931. On motion of counsel for plaintiffs the causes were continued to July 13th, at which time the trial began, but lasted for several weeks.

[413]

The attorneys for the appellant were duly notified of the time and place of trial, but failed to appear or participate’ therein. On motion of plaintiffs the default of the appellant was duly entered in open court on July 23d. A judgment by default was accordingly rendered. The appellant subsequently moved to set aside this default judgment under the provisions of section 473 of the Code of Civil Procedure. The motion was supported by the affidavit of Robert W. Cooper, one of the attorneys for appellant. Counter-affidavits were filed by the plaintiffs. On August 8, 1931, the motion to set aside the default judgment was denied. Prom this order and from the judgment of rescission which was subsequently rendered and entered, this appeal was perfected.