Morton v. Shannon

THE COURT.

This is an appeal from an order denying defendant’s motion to vacate and set aside a default judgment entered in favor of the plaintiffs, and also from the judgment itself.

The complaint states a cause of action in the form of a common count for certain goods sold and delivered, alleging a reasonable value of $501.25, and prays for interest and costs of suit.

[690]

As to whether or not a default should be set aside upon motion made under the terms of section 473 is a matter that rests so largely in the discretion of the trial court that its action in such a proceeding will not be disturbed on appeal unless it shall be made clearly to appear that there was an abuse of discretion. True it is that the supreme court of this state has said, by way of advice to trial courts, that their discretion is better exercised when it tends to bring about a decision of the cause upon its merits; still the rule itself as just announced has never been relaxed. To repeat, “Unless the record clearly shows that the trial court has abused its discretion, its order, whether it be to grant or deny the application, will be affirmed.

(Ingrim

v.

Epperson,

137 Cal. 370, [70 Pac. 165];

Alferitz

v.

Cohen,

145 Cal. 397, [78 Pac. 878].) Testing the record on this appeal by the rule announced, we are constrained to hold that the order of the trial court must be affirmed.

According to one of the affidavits filed on behalf of the appellant, he was sick on the third day of October, 1913, the day he was served with a copy of the summons and complaint; and he was delirious and out of his mind from that date until the seventeenth day of the same month, the day on which his default was entered. This affidavit was not corroborated by the affidavit of a physician, or by any one except the defendant’s brother, who says that on the sixteenth day of October the defendant appeared to be in a dazed condition of mind. In an affidavit of the process server, a disinterested party, he averred that the defendant was not ill on the day he was served with summons and complaint, and that he appeared to be in a normal condition of mind. The trial court must have accepted this testimony of the process server as true, in which event he must have withheld credence from the affidavit filed on behalf of the defendant just referred to.