Hagenkamp v. Equitable Life Assurance Society

[714]

LENNON, P. J.

The plaintiff in this action sought to recover from the defendant corporation, Equitable Life Assurance Society, the sum of $750, alleged to be the proceeds due upon a matured 20-year endowment life insurance policy issued by the corporation defendant to Philip W. Wegman, deceased, and which, during the latter’s lifetime, had been assigned by him to the plaintiff. Catherine W. Wegman, the widow of the deceased, by leave of the court first had and obtained, filed in the action her complaint in intervention, wherein she claimed the sum in suit by virtue of an assignment of the policy to her alleged to have been made prior to the claimed assignment thereof to the plaintiff. Issue was joined by the plaintiff upon the allegations of the complaint in intervention; and by stipulation of the parties the corporation defendant deposited with the court the sum in suit upon the condition that it be applied in satisfaction of any judgment which might be rendered in the action for either the plaintiff or the intervener. The record shows the rendition of a judgment on August 7, 1913, in favor of the plaintiff and against the intervener, based upon findings of fact which, among other things, declare that the cause “came on regularly for trial on the sixteenth day of May, 1913, at which time witnesses were sworn and testified, and thereafter the cause was regularly continued” to the seventh day of August, 1913, for “further hearing”; and the cause coming on regularly then to be heard, evidence was introduced and the cause submitted for decision.

The judgment thus rendered was entered of record on August 8,1913; and the statement upon appeal from the order shows that on that date counsel for the intervener prepared and gave notice to plaintiff and his counsel of a motion to vacate and set aside the judgment upon the ground that no valid notice of the setting of the cause for trial was given to the intervener or her counsel, and upon the further ground that said judgment was rendered and entered through the intervener’s inadvertence, mistake, and excusable neglect. The court below ordered the judgment vacated, and it is from that order that the appeal is taken.

The motion to vacate was accompanied and supported by the affidavit of the counsel for the respondent, which, among other things, tended to show that on August 6, 1913, he received a postcard notice from the clerk of the court in which