Weck v. Sucher

KNIGHT, J.

Plaintiff appeals from an order granting defendants’ application to be relieved from a default in failing to answer plaintiff’s complaint. One of the grounds urged for reversal is that in granting said application the trial court abused its discretion.

The facts set forth in the affidavits filed by defendants in support of their application were not controverted and may be stated as follows: The summons in the action was served on defendants on March 11, 1927, and consequently the statutory ten-day period within which they were required to appear and answer the complaint expired on March 21, 1927.

[424]

The answer was in fact filed the following morning about 10:30 o’clock by defendants’ attorney, but default had already been entered. The answer had been prepared and verified, and was ready to be filed within the statutory time, but was not presented for filing until the day following because of a mistaken belief on the part of defendants that the summons had been served upon them on March 12, 1927 ; and said attorney did not learn of the mistake until he called at the county clerk’s office on the morning of' March 22, 1927, to file said answer.

In

Brasher

v.

White,

53 Cal. App. 545 [200 Pac. 657], and

Reidy

v.

Scott,

53 Cal. 69, the facts were substantially the same as those presented here, and in each case the trial court refused to vacate the default; but on appeal the order of refusal was reversed, the court holding that the defaulting party was entitled to have the default set aside.

Plaintiff in support of his position has cited a number of cases to the effect that forgetfulness and like instances of inexcusable neglect on the part of a defaulting party or his attorney are insufficient grounds upon which to base an order vacating the default, but we do not deem those cases in point for the reason that here the facts show that within three days after being served with the summons, defendants consulted their attorney and laid before him all of the facts of the controversy; and thereupon said attorney prepared an answer, had it verified, and was ready to file the same before thé end of the ten-day period; but, as stated, owing to the fact that he had been mistakenly informed by Ms clients as to the date of the service, he believed that the statutory period for filing the same did not expire until March 22, 1927. Therefore, as held in the two cases herein-above cited, the failure to answer within the period fixed by the statute cannot be said to be the result of indifference or lack of diligence on the part of the defendants or their attorney, but was due solely to the mistake on the part of the defendants as to the date of the service of the summons.