Williams v. Thompson

California Court of Appeal Feb 1, 1923 No. Civ. No. 4086.Published

Before: Conret

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Holding. The court held that the trial court did not abuse its discretion in granting relief from a default judgment under section 473 of the Code of Civil Procedure, as the defendants' failure to appear due to a mistake of law constituted a proper case for such relief.

Issues

Whether the trial court abused its discretion in granting relief from a default judgment based on a mistake of law.
Whether the defendants' affidavit of merits and proposed answer were sufficient to support a motion for relief under section 473 of the Code of Civil Procedure.

Disposition. affirmed

Quotations verified verbatim against the opinion

“It is a recognized rule that the court will, in a proper case, grant relief against a mistake of law which has resulted in the default of a defendant.”

“The court did not abuse its discretionary power in treating this as a proper case for such relief.”

CONRET, P. J.

Judgment by default having been entered against the defendants, they moved the court to set aside the default and vacate the judgment, on the ground that said default was taken as a result of mistake of law

[659]

and surprise of the attorneys for the defense. This appeal is from an order granting that motion.

The action is one commenced in the county of Los Angeles to recover money alleged to be due under a contract for personal services. The summons was served on the defendants in the county of Orange on October 24, 1921. Summons was returned on November 25th, and the default and judgment by default were entered December 5, 1921.

On the seventh day of December, 1921, pursuant to notice duly given on the twenty-fifth day of November and their special appearance for that purpose, the defendants moved to quash the service of summons because of certain alleged defects in the copies of summons and complaint which had been delivered to them. That motion having been denied, they then made the motion whereby they sought relief under the provisions of section 473 of the Code of Civil Procedure. From the affidavits on this motion it appears that Mr. Lyon, one of the attorneys of the defendants, had charge of the motion to quash service of

summons;

that he in good faith was of the opinion that the copies of summons delivered to the defendants were insufficient because they were not dated, were without seal and were not signed by a deputy clerk of the court, and. because the purported copy of the complaint was not signed by the plaintiff or his attorney. Relying upon their special appearance and motion to quash summons, defendants entered no general appearance and thereby suffered default.

The motion to quash service of summons having been denied, it is now assumed as the law of the case that counsel for defendants were in error when, relying upon that motion, they permitted default to be taken against them. They claim that they did this because they were also of the opinion that an application for additional time in which to appear and plead would have constituted a general appearance. If so, we think that this also was a mistake of law.

Williams v. Thompson

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CONRET, P. J.

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