Alvarado v. Sunset Supper Club

JAMES, J.

This action was brought to recover from defendants an amount of money as damages. Defendants Sunset Supper Club (a corporation), Tony Matowich, and

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George Morris failed to answer within the time fixed by law after service of summons, and their default was duly entered and judgment taken on May 18, 1921. On the 13th of June, 1921, after notice to the plaintiff, said defendants presented to the superior court their motion to set aside the default and the judgment entered thereon and to be allowed to file an answer. The court made an order granting the motion, conditioned upon said defendants paying to the plaintiff the sum of $33.30 costs, which costs were paid, .The plaintiff has appealed from the order.

In support of the appeal it is argued by counsel for the plaintiff that the showing made by the defendants was insufficient to authorize the trial court to grant the motion. It is contended that the notice of motion was insufficient in its statement of grounds; that the facts shown by the affidavits did not establish that the neglect on the part of the defendants in failing to appear and answer was excusable, and that no sufficient affidavit of merits was presented. The notice of motion did state that it would be made upon the grounds that the default judgment had been entered through the “mistake, inadvertence, surprise, and excusable neglect of these defendants, and each of them,” and that the motion would be made upon the affidavits of the individual defendants and upon the verified answer of said defendants, including the Sunset Supper Club. The notice of motion contained all of the statements requisite under the provisions of section 473 of the Code of Civil Procedure, and it was neither necessary nor proper that there should be set forth therein a statement of the particular facts upon which the defendants would rely. By the affidavits of the defendants facts were shown which entitled the court to conclude that a case of excusable neglect was made out. These affidavits showed that defendant Tony Matowich, immediately after service thereof, took a copy of the summons and complaint to an attorney and requested said attorney to represent him; he set forth in the affidavit that it was understood that said attorney would represent all defendants. It appeared by Matowich’s affidavit that he was secretary of the defendant corporation. In the affidavit of defendant Morris it was stated that said defendant was president of defendant corporation; that when the sum-