Bailiff v. Hildebrandt

NICOL, P. J.,

pro

tem.

This is an appeal by plaintiff from an order vacating and setting aside the default of defendant and the judgment entered thereon against the said defendant.

The motion to set aside the default and judgment was one under section 473 of the Code of Civil Procedure and in substance was made upon the ground of mistake, inadvertence, and excusable neglect. The defendant’s demurrer to the complaint was overruled by the court on December 9, 1918, and by the order he was given ten days within which to answer. On December 26, 1918, the defendant not having answered in compliance with the said order, his default was entered ánd on the same day judgment was duly entered for the amount , prayed for in the complaint, together with costs; execution was issued and levied upon moneys belonging to the defendant and the judgment by virtue thereof was fully paid and satisfied on the twenty-sixth day of December, 1918. On June 2, 1919, defendant filed his notice of motion to set aside the said default and judgment. The motion

[566]

came on for hearing before the court on June 16, 1919, and was on said day by the court granted.

The notice of motion stated that it would “be made and based upon all the records, papers, and files and proceedings in this action, and upon this notice and the affidavit of defendant and of W. F. Cowan which is served and filed herewith, and upon such oral and documentary evidence as may be offered ...” No copy of any answer, or other pleading proposed to be filed, accompanied said notice of motion. Section 473 of the Code of Civil Procedure, as amended in 1917 (Stats. 1917, p. 242), provides that an application like the one in the case at bar “must be accompanied with a copy of the answer, or other pleading proposed to be filed therein, otherwise said application shall not be granted.” The supreme court, in speaking of this amendment in the case of

Los Angeles County

v.

Lewis,

179 Cal. 398, [177 Pac. 154], said: “The plain object of the provision was simply to require the delinquent party seeking leave to contest on the' merits, to show his good faith and readiness to at once file his answer in the event that leave is granted by producing a copy of the proposed answer for the inspection of his adversary and the court. Substantial compliance with the provision of course requires such production in connection with the application for relief.”