McOmie v. Board of Directors

HART, J.

The plaintiff brought this action to recover the sum of $794.38 which the complaint alleges was held by the defendants in trust for one Henry McOmie, father of the plaintiff here, who, at the time said money was deposited with said defendants and at the time of his death, was an inmate of the Veterans’ Home of California. The complaint alleges that the said defendants, as by the law required, are holding said sum of money until the same shall be “claimed by any heirs at law of said Henry McOmie, deceased” and that the plaintiff herein “is the only person entitled to share in any estate of said Henry McOmie, deceased, and as such is entitled to all of the moneys now held by said defendants in trust for the heirs at law of said Henry McOmie, deceased.” The date of the filing of the complaint is not made to appear. The summons, however, was served on the defendants on the ninth day of March, 1925, and on the nineteenth day of said month of March the defendants, through the attorney-general, interposed a general demurrer to the complaint. On May 22, 1925, the court made an order overruling the demurrer and gave the defendants ten days from the date of said order within which to answer the complaint. The defendants failed to file an answer within the time allowed by the court and on the ninth day of June, 1925] upon the application of the plaintiff, the default of the defendants was entered and judgment entered accordingly for the sum of $794.38, with interest thereon at the rate of seven per cent per annum from the date of the 'entry of said judgment. On the twenty-second day of June, 1925, the defendants gave notice

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of a motion to set aside said default and the judgment thereupon entered “upon the ground that the notice of overruling the demurrer of defendants was served by mail and that defendants’ time to plead had not elapsed when said default was taken.” The notice stated that it would be based “on this notice and the affidavit of B. L. Chamberlain and the records and files of the action.” Certain affidavits were filed, setting forth the facts upon which the motion to set aside the default was founded and upon the hearing of said motion the court denied the same. Thereafter the attorney-general filed a notice of motion to set aside the older denying the motion to set aside the default and in said notice stated that the same would be supported by certain affidavits and the records of the case. Said motion was subsequently heard and denied. The defendants have taken an appeal from the order denying their motion to set aside the default and also from the judgment rendered and entered in said action upon said default.