Cunial v. Justice's Court

CASHIN, J.

An appeal from a judgment of the superior court in and for the county of Alameda made on

certiorari

dismissing the petition and affirming an order of the Justice’s Court of the City of Berkeley vacating a judgment therein rendered.

[255]

An action was brought by appellant in the latter court. Summons was served upon the defendant, on whose failure to appear default was entered. On the day of the entry of the default, but after its entry, defendant filed therein a demurrer to the complaint. Following the entry of the default mentioned evidence was taken in support of the allegations of the complaint, whereupon' the court entered judgment for defendant. Appellant appealed therefrom to the superior court upon questions of law. Following a hearing in that court, in which the attorney for the defendant participated, the judgment was reversed and the cause remanded. After the remand, but before further proceedings were had in the cause, defendant moved in the Justice’s Court for an order setting aside his default, which motion was denied. Subsequently the cause was again heard in the latter court, the attorney for defendant being present; evidence was offered by appellant and a stipulation entered into between the attorneys for the parties as to the amount of damages suffered by appellant, whereupon judgment was entered against the defendant.

On the fourth day thereafter defendant filed a written notice of motion and application for an order setting aside the default, vacating the judgment, and permitting him to answer the complaint, the notice being accompanied by the affidavit of his attorney stating grounds for relief under the provisions of section 859 of the Code of Civil Procedure, which motion was presented and granted within the time limited by the section named. It was alleged in the petition mentioned “that five days notice for the time of hearing of said motion to set aside the default in the Justice’s Court heard on the 13th day of December was never given,” and “that the time of the hearing of said motion to set aside the default judgment heard on the 13th of December, 1923, was not given in the notice of motion.” The notice mentioned, which was supported by an affidavit, was dated December 8, 1923, addressed to appellant and his attorney, and in all respects as to form complied with the requirements of section 1010 of the Code of Civil Procedure, it being therein stated that the motion would be made on