Newton v. De Armond

STURTEVANT, J.

A default judgment was entered against the defendant; he made a motion to set aside the

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default and to vacate the judgment; his motion was denied and the defendant has appealed.

Heretofore (the exact date is not shown) the defendant was the owner and in possession of a certain Fageol motor-truck ; he sold the truck under an executory contract to R C. De Armond, who did, at a date prior to the twenty-eighth day of September, 1921, take out a license in his own name but registered the truck in the records of the motor vehicle department showing James H. Buckley, this defendant, to be the legal owner. Just when the license was taken out the record does not show. On the eighteenth day of August a collision occurred between the Fageol truck and a Packard truck owned and operated by the plaintiff. It is not claimed that the defendant was driving or was personally operating the Fageol motor-truck at the time of the accident. The record contains much hearsay in the form of letters, written by third persons after the accident, which does not throw any light on the matter now before, the court. However, the record shows that a complaint was filed December 19, 1921, in the superior court of Santa Clara County, and that a summons issued on the same day. The summons was served on the appellant in Santa Cruz County on December 22, 1921. The last day for the appellant to appear and answer was January 21, 1922. By the affidavit of the appellant it appears that at all times herein mentioned Mr. B. P. Pfingst was the resident agent at Watsonville of certain insurance companies and “is an educated business man of high standing in the city of Watsonville.” That immediately after appellant was served with summons and complaint he saw Mr. Pfingst, informed him of the fact of the service and that Mr. Pfingst stated to appellant that De Armond was insured and that Pfingst had attended to the matter, and that the appellant accepted the statement of Pfingst as meaning that the case would be defended on behalf of all of the defendants, and that appellant acted accordingly. Later the plaintiff caused appellant’s default to be entered, January 25, 1922, and a judgment to be entered on the default February 2, 1922, and immediately thereafter caused a copy of the notice of judgment to be mailed to the appellant at his post-office address at Watsonville. When the appellant received the notice in question he took it at once to Mr. Pfingst, who, in turn, sent the same to the office of the attorneys of the in