Sampanes v. Chazes

BURNETT, J.

The appeal is from an order setting aside a judgment by default and permitting the defendant to answer. The motion for said order was based upon the ground of inadvertence, surprise, and excusable neglect. It

[613]

was supported by an affidavit of defendant and by oral testimony. The proceeding was taken under section 473 of the Code of Civil Procedure, and notice was given within six months of the entry of the default.

[1]

In the affidavit of defendant it appears that a complete settlement of all the matters in controversy was entered into between respondent and appellant on or about the twenty-first day of August, 1920, and it was agreed at the time that the action, should be dismissed. It shows further a breach of faith on the part of appellant in failing to dismiss the action and in having the default of defendant entered. Therein it appears, also, that defendant did not learn of the default until some time after it was entered. The general features of the showing made, which we have thus outlined, show a case appealing to the wise discretion of the trial court, and wje cannot say it was an abuse of tha.t discretion to grant the motion. The principle that should control in such cases has been often set forth and it needs no repetition. It is sufficient to refer to the decision of the supreme court in the case of

Graig

v.

San Bernardino Inv. Co.,

101 Cal. 122 [35 Pac. 558].

[2]

If it should be thought that said affidavit was not sufficiently full in explanation of the delay of respondent in instituting the proceedings, we must remember that it was supplemented by parol proof. This not having been brought up, the presumption is, of course, that it. furnished a complete and satisfactory excuse for any seeming remissness in that respect. The law is well settled that all intendments are in favor of the validity of the action of the trial court and of the regularity of the proceedings therein.

(McGowan