Ross v. San Diego Glazed Cement Pipe Co.

CONREY, P. J.

This is an appeal by the defendant and cross-complainant from an order setting aside the judgment rendered on the cross-complaint and setting aside the default of the plaintiff and cross-defendant for failure to answer the cross-complaint of defendant, and allowing plaintiff and cross-defendant to file an answer to the cross-complaint.

[1]

As provided in section 473 of the Code of Civil Procedure, a court may, upon such terms as may be just, relieve a party or his legal representative from a judgment, order, or other proceeding taken against him through his mistake, inadvertence, surprise, or excusable neglect; the application therefor being made within the time and in the manner provided. The notice of such a motion or application should state the grounds upon which it will be made. (Code Civ. Proc., sec. 1010.) An affidavit of merits is essential to such a motion for relief from a judgment.

(Parkside Realty Co.

v. MacDonald, 167 Cal. 342, 345, [139 Pac. 805].) In this case the record shows that the notice of motion did not purport to state the grounds upon which the application would be made, but merely stated that it would be based upon two certain affidavits, which

[172]

were served with the notice, and upon the records and files in the action.

[2]

An affidavit of merits must show that the defendant has fully and fairly stated the facts of the case to his counsel, before the advice of counsel can amount to a

prima facie

showing of merits on behalf of the defendant. For a defendant to say that he has fully and fairly stated the facts of his defense to his attorney is not a compliance with the rule requiring that he shall state the facts of the case.

(Morgan

v.

McDonald,

70 Cal. 32, [11 Pac. 350];