Brown v. Martin

RICHARDS, J.

This is an appeal from an order denying the motion of appellant to set aside a default and relieve him from a judgment by default. The action is for forcible entry and unlawful detainer. The complaint was filed and the summons issued and served on the defendant on October 18, 1912. The summons contains a provision directing the defendant to appear and answer within three days after service, or that judgment will be taken .against him. The defendant did not so appear, and on October 22, 1912, the plaintiff procured his default to be taken and judgment to be entered against him for the restitution of the premises and for the sum of three hundí ed and seventy dollars damages, and for costs. On October 22, 1912, after such default and judgment, the defendant undertook by counsel to serve and file a demurrer, and then for the first time learned of such default and judgment. He immediately and on that day gave notice of a motion to set aside the default and judgment, and presented with said notice of motion several affidavits of defendant and his counsel tending to show mistake, inadvertence, and excusable neglect in permitting said default; and also presented and offered for filing his demurrer and answer. The affidavits of defendant and his counsel set forth that the defendant had been actually served with process on Friday, October 18, 1912; that the defendant is a Portuguese sheep-owner and herder who is unable to read or write; that on Monday, October 21, 1912, he brought the papers with which he had been served to the office of his counsel, and then and there informed them, by mistake, that the papers had been served upon him oh Saturday, October 19, 1912, which mistake arose innocently and through his ignorance and inadvertence and want of understanding of the importance of the precise date of service; that his counsel relied upon this statement, and made ready the papers for defendant’s appearance on October 22, when they found, too late, that their client’s default had been taken and a judgment entered against him. Upon the hearing of the

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motion the plaintiff presented the counter affidavit of one of the attorneys for plaintiff, who deposed to having been present át a street conversation between the defendant and one of his attorneys on October 23, 1912, in which the defendant asserted that he had told his attorneys at the time he brought the papers to them that they had been served upon him on the eighteenth day of October. This affidavit was not disputed by any counter affidavit on the part of the defendant at the hearing of the motion. The court denied said motion, and from its order in that respect this appeal has been taken.