Peterson v. Superior Court

HART,

J.

— Certiorari. The petition shows: That on the eighth day of December, 1915, the petitioner instituted an action in the justice’s court of Nelson Township, Butte County, against W. B. Linn and William Utter, copartners engaged in business under the firm name and style of Linn & Utter, for the recovery of the sum of $230, alleged to be a balance remaining due on two promissory -notes, together with costs of suit, including attorney’s fees, as provided in said notes. On the same day, upon an affidavit filed for that purpose, a writ of attachment was issued and the same levied upon property belonging to the defendant, Utter.

On the fourteenth day of December, 1915, the defendants were each served with summons, together with a copy of the complaint, at Chico, in Butte County, and the constable serv

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ing the same made due return of such service on the sixteenth day of December, 1915.

On the sixteenth day of December, 1915, an undertaking for the release of the attachment was filed in the sum of $647.02.

On January 3d, the defendants having failed to answer or demur to the complaint within legal time, a default judgment was entered against them for the amount sued for and costs.

On January 15, 1916, J. Oscar Goldstein, attorney for the defendants, filed and served notice of a motion to set aside the judgment so entered on the ground that the same had been taken against the defendants through their ‘‘ mistake, inadvertence, surprise and excusable neglect.” (Code Civ. Proc., sec. 859.) Said notice fixed the time for the hearing of said motion for the twenty-fifth day of January, 1916, or ten days from the date of the filing and service of the notice. On the day last mentioned the motion was heard, and the justice denied the same, and so refused to set aside and vacate the default judgment entered against the defendants. Thereafter (February 2,1916), the defendants took an appeal to the superior court from the order of said justice refusing to open' up the default, the appeal being on questions of law only.

On the twenty-first day of February, 1916, the appeal was heard and, on the twenty-fourth day of that month, the superior court made the following order in the cause: ‘ ‘ The clerk of this court is directed to enter an order sustaining the motion of the defendants to return this cause to the justice’s court of Nelson Township, with directions to the justice of said court to set aside the default judgment and permit the defendants to file their answers and proper pleas to plaintiff’s action against them. The defendants are entitled to recover their costs in this court on this appeal.”