Peterson v. Plunkett

[303]

BUCKLES, J.

This is an action to quiet title of H. D. Peterson to a tract of land in Lake county. The ease was set for trial; the defendant failing to appear, a trial was had, resulting in a judgment for plaintiff on December 21, 1903. On March 21, 1904, defendant moved the court to set aside said judgment on the ground that it was taken against him “through his mistake, inadvertence, surprise and excusable neglect.” Defendant at the same time moved for a new trial. Both motions were denied and this appeal is from the judgment, from the order denying motion to set aside the judgment, and from the order denying motion for a new trial.

The usual complaint to quiet title was filed. A general demurrer thereto was filed and overruled.

Defendant answered, denying plaintiff’s title, and for further defense alleges his own title to said lands to be a seizure in fee and entitled to possession, and that while so seised and possessed and entitled to possession the plaintiff entered and ejected him, and wrongfully, unlawfully and witWut defendant’s consent withholds possession from defendant. The answer was filed November 16, 1903.

On November 25, 1903, plaintiff filed an answer to defendant’s cross-complaint, specifically denying the allegations thereof. This answer, according to admissions of Frank

V.

Bell, a member of the firm of Bell & Straus, attorneys for defendant, was served on defendant’s said attorneys before December 11, 1903, to wit, about November 25, 1903. On December 7, 1903, the court made an order setting the case for trial on December 21st, and directed in said order that the clerk notify Bell & Straus, attorneys for defendant. On December 7, 1903, the clerk did notify said Bell & Straus by letter, they having their office in San Francisco, that the case was set for trial for December 21st.

On December 11, 1903, attorney Frank V. Bell wrote the clerk in answer to his said notice, saying: “The plaintiff has as yet failed to serve upon me any answer to my cross-complaint, and as the demurrer has been withdrawn, the case is not at issue nor ready for trial. Under any circumstances it would be impossible for me to try the case on the 21st, my engagements in courts in this County will prevent it. However, as the case is not at issue and cannot be tried, as