Corgiat v. Realty Mortgage Corp.

CASHIN, J.

An appeal from an order vacating and setting aside a judgment.

The action was brought by appellant against respondent corporation to recover damages for the alleged conversion of certain corporate stock. The summons was served on December 17, 1926, and thereafter a verified answer to the complaint was filed by respondent. A motion to set the cause for trial was regularly made by appellant, and the trial, by stipulation of counsel of record made in open court, was set for February 17, 1927, in department 2 of the superior court of the city and county of San Francisco, fol-' lowing which a notice of trial was served upon the attorneys of record for respondent. These attorneys failed to appear at the time the cause was heard, and the court entered its judgment in favor of appellant. Thereafter respondent served and filed a notice of motion for an order vacating

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the judgment upon the grounds that the same had been made and entered through the mistake, inadvertence, surprise, and excusable neglect of the respondent, and after a hearing the motion was granted on February 27, 1927.

The notice of motion, which was accompanied by a substitution of attorneys, referred to the verified answer and the files and records in the case, and was based upon certain affidavits, one being an affidavit of merits, which was served and filed.

Appellant contends that in view of the facts the order was an abuse of discretion.

On the date of the entry of judgment Messrs. McGee and Mather were attorneys of record for respondent, no formal substitution of attorneys being had until the filing of the motion. It appears, however, from the affidavits filed that these attorneys had in fact terminated their connection with the case before the trial, and that Clifton B. Gordon, the attorney who was subsequently substituted as the attorney of record, was acting for respondent before and on the day of the trial. According to the affidavit of the latter the attorney for appellant was notified on February 11, 1927, that affiant would be engaged on February 14, 1927, in the trial of another action in department 7 of the same court; that at the hour of 10:30 A. M. on the latter date affiant left the courtroom of department 7, where he was engaged, and went to department 2 in order to ascertain the condition of the calendar in that department; that another action was then on trial in the latter department, and from a conversation with counsel engaged therein it appeared to affiant that the hearing would occupy the whole of that day; that he returned at 4:40 o’clock P. M., the hour at which the trial in which he was engaged in department 7 ended, and found that the action against respondent had been heard and the judgment entered.