Banse v. Wells

THOMAS, J.

This is an action to quiet title. Summons and complaint were duly and legally served on defendant, who did not appear. Default judgment was entered accordingly. Pour days after the entry of judgment defendant gave notice of motion to vacate said default and set aside the judgment. This motion was presented to, considered, and granted by the court on October 30, 1916. This appeal is from the order granting said motion.

[1]

Appellant insists that the court abused its discretion in granting the motion referred to. We do not think so.

In view of the fact that this case presents one of those points which has been up so frequently, and so much having been said bearing thereon, both by this court and the supreme court, that neither bar nor bench has the time or disposition to dwell further on a long, or any, statement of the facts here, we desist from so doing. Suffice it to say that we have read the entire record, and are satisfied that the court had enough before it to support the order made, in view of the age and inexperience of defendant, and the apparent confusion as to time and manner of his appearance -in the matter, arising from the conversation with the process server. [2] As has been so frequently stated, “the policy of the law is to have every litigated case tried upon its merits, and it looks with disfavor upon a party who, re

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gardless of the merits of his case, attempts to take advantage of the mistake, surprise, inadvertence or neglect of his adversary.”

(Berri

v.

Rogero,

168 Cal. 736, [145 Pac. 95].) This language, we think, is especially fitting to the case at bar. It is conceded by appellant that there was negligence on the part of defendant—an old man of seventy years—but insists that such negligence is not so excusable and so important a matter, as disclosed by the record, as to warrant the court below, without abusing its discretion, to enter the order appealed from.

Appellant also insists, for his own protection, upon mere technicality, rather than to submit to a trial on the merits. [3] “This court is much more disposed to affirm an order when the result is to compel a trial upon the merits than it is when the judgment by default is allowed to stand, and it appears that a substantial defense could be made.”