Brandon v. Sullivan Tractor Co.

STURTEVANT, J.,

pro tem.

is an appeal from an order of the superior court of Alameda County setting aside a default judgment which had been entered against the respondents and permitting them to file an answer.

The plaintiff filed a complaint against the defendants,, and on August 17, 1916, the superior court overruled a general demurrer to this complaint, but in doing so granted the defendants permission to file a special demurrer within five days thereafter. On the twenty-eighth day of August, 1916, no special demurrer or answer having been filed, the default of the defendant Sullivan Tractor Company, a corporation, was entered by the clerk upon the request of the plaintiff; on the eighth day of September the clerk, upon plaintiff’s request, entered the default of the remaining defendants, and on the same day the court ordered judgment as prayed against all of the defendants. Thereafter, and on the eleventh day of ’ September, 1916, the defendants gave notice that they would move to set aside their default and the judgment entered pursuant

thereto;

that said motion would be made under sec

[269]

tion 473 of the Code of Civil Procedure, upon the ground, that these proceedings were taken against them by reason of excusable neglect. They supported this notice and a motion subsequently made and granted pursuant thereto by certain affidavits. One of these affidavits was by the Honorable Milton T. Farmer, the judge who overruled the general demurrer, in which he stated that had he been requested at the time the demurrer was overruled to gránt the defendants time in which to answer, he would have granted them at least ten days for such purpose. The other material affidavit is by Mr. De Lancey C. Smith. Mr. Smith deposes that his failure to ask for time in which to answer was due entirely to inadvertence and excusable neglect by reason of the fact that at the time the general demurrer was overruled it was his intention to demur specially, as suggested by the court; and, if he had done so, the necessity for filing an answer would not have arisen for some time thereafter; that this neglect of his arose from the fact that it is the common practice and usage in the superior court of Alameda County for the prevailing party to serve upon the adverse party notice of the ruling of the court upon such demurrer, and the party served with such notice computes his time for his next appearance from the date of the service of such notice; and, in accordance with this practice, he had a conversation with Ramsey Probasco, one of the attorneys for the plaintiff, on or about the twenty-sixth day of August, during which he discussed with Probasco the fact that up to the time of that conversation plaintiff had not served the defendants with notice of the court’s ruling on the demurrer, and that Probasco during that conversation stated that he thought notice had been served, and, if it had not been, he would serve it immediately. In this affidavit, Mr. Smith admits that he was negligent in not asking the court for time in which to answer if he should conclude not to file the special demurrer suggested; and states in addition to the foregoing facts that it was due to his excusable neglect in not so requesting the court for time for that purpose and that he overlooked the necessity of answering within ten days.