Fink & Schindler Co. v. Gavros

CASHIN, J.

Appeal by the Fink & Schindler Company, a corporation, from an order of the superior court of the city and county of San Francisco, vacating and setting aside as to each of the respondents John Gavros and George Panagiotaros a default judgment entered therein.

The facts are as follows: The appellant on January 15, 1924, filed its complaint against respondents alleging an indebtedness of $1,404, with interest. The complaint contained two counts, one for the reasonable value of materials

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and labor furnished, the other for such materials and labor at an agreed price of the above-stated amount. Summons was served on respondents in said city and county on January 21, 1924. Thereafter, respondents not having demurred or answered to the complaint, judgment for the amount prayed was on February 14, 1924, entered against them. Thereafter, on February 27, 1924, respondents separately served and filed their motions to vacate the judgment of default, which motions were on April 1, 1924, granted, with permission to file their proposed separate answers, on condition that the appellant be paid the sum of $50, which sum was by respondents deposited with the clerk of the court. The affidavit attached to appellant’s complaint as a verification, made by its attorney, was not in substance or form sufficient to constitute a verification thereof under the provisions of section 446 of the Code of Civil Procedure.

It is urged by'appellant that respondents’ several motions were insufficient in that the notices failed to state the grounds thereof in accordance with section 1010 of the Code of Civil Procedure, and that no facts were stated in the attached affidavits and answers showing diligence, mistake, inadvertence, or excusable neglect or a defense to the action, and that the court in granting the motion abused its discretion.

The notices of motion each stated that the motion would be “made and based on the records, proceedings herein, this notice and papers copies of which are attached herewith,” and thereto were attached the affidavits and proposed answers referred to. We are of the opinion that the notices with the papers attached were sufficient to apprise appellant that the motion sought relief under section 473 of the Code of Civil Procedure, and that" the grounds of the motion were the alleged mistake, inadvertence, and excusable neglect of respondents