Barling v. Weeks

HALL, J.

This is an appeal from an order granting plaintiff’s motion to set aside the default of plaintiff for failure to file an amended complaint after demurrer sustained, and granting plaintiff leave to file an amended complaint.

The motion was made upon the usual ground that the failure to file the amended complaint in time occurred through the mistake of plaintiff’s attorney, and it is first urged as a ground for the reversal of the order that the showing made by plaintiff as to the mistake was insufficient to justify the order made by the court.

The granting of motions to set aside defaults taken against a litigant through his mistake, inadvertence or excusable neglect lies largely in the discretion of the trial court, and this court will only interfere where it appears that the trial court has abused its discretion. In

Watson

v.

San Francisco & H. B. R. R. Co.,

41 Cal. 17, it is said: “The exercise of the mere discretion of the court ought to tend in a reasonable degree, at least, to bring about a judgment on the very merits of the case; and when the circumstances are such as to lead the court to hesitate upon the motion to open the default, it is better, as

[457]

a general rule, that the doubt should be resolved in favor- of the application.” (See, also,

Nicholl

v.

Weldon,

130 Cal. 666, [63 Pac. 63];

Winchester

v.

Black,

134 Cal. 125, [66 Pac. 197] ;

Wolf & Co.

v.

Canadian Pacific Ry.,

89 Cal. 332, [26 Pac. 825] ;