Andrews v. Jacoby

KERRIGAN, J.

This is an appeal from an order of the superior court of the city and county of San Francisco setting aside a default judgment.

The action was commenced in April, 1916, by plaintiff as the owner of a promissory note against the defendant as maker thereof. In October,

1916,

ah order of publication of service of summons was made, and the complaint and sum

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mons were received through the mail by defendant in Boston, Massachusetts, about October 31,1916. Thereupon defendant sent the papers to his attorney in San Francisco, Mr. John D. Rutledge, who noted the last day for defendant to answer as January 25, 1917. Defendant returned to California late in December, 1916, and was personally served with the summons and complaint in San Francisco on January 8, 1917. On the following day, January 9th, he handed these papers to Mr. Rutledge, stating that he had just been served therewith. On January 19th Mr. Rutledge asked plaintiff’s attorneys for an extension of time to answer, and was informed that defendant’s default had been entered and judgment taken against them that morning. Under this state of facts Mr. Rutledge immediately noticed a motion to set aside the default, basing his application upon an affidavit by himself, reciting the foregoing facts, and setting up in addition that defendant had left California on January 12th, and was still absent. As to the merits, the affidavit read as follows: “Affiant is informed and believes; and therefore alleges, that defendant fully and fairly stated all the facts of the case in the above entitled action to affiant, and affiant believes and advised said defendant that said defendant had a good and meritorious defense on the merits of said action.”

On the hearing of the motion Mr. Rutledge filed a further affidavit, the material portion of which is to the effect that on the eighth day of January, when he was served, defendant was very busy closing up his business affairs and preparing to move his family to Massachusetts, and that he left on the 12th.

The lower court was clearly in error in setting aside the default on the showing made. The attorney had no way of knowing whether his client had stated all the facts to him, nor could he tell whether or not the client believed he had a meritorious defense. As a full statement of facts by the client, and an honest belief by him in the existence of a meritorious defense, are essential to an affidavit of merits, it is obvious that the hearsay statements of Mr. Rutledge’s affidavit above quoted are hopelessly insufficient in law as in fact.