Eberhart v. Salazar

KNIGHT, J.

This is plaintiff’s appeal from an order vacating and setting aside a default judgment in an action wherein defendants failed to file their amended answer within the time fixed by the order of court, after a demurrer to the original answer had been sustained.

The record discloses that the court by

ex parte

order had extended defendants’ time to file said amended pleading' until and including Friday, March 30, 1923. On the day following, Saturday, March 31, 1923, the amended pleading, not then having been filed, the clerk of said court, at plaintiff’s request, entered judgment by default against said defendants. On April 11, 1923, defendants served notice of motion to set aside said default judgment, and pursuant to an order shortening time, said motion was heard on April 13, 1923, and, on May 8, 1923, was granted.

It appears from the affidavit presented in support of defendants’ motion to vacate said default judgment that said amended pleading was mailed in San Francisco on March 30, 1923, by defendants’ attorney to the county clerk of Contra Costa County, at Martinez, and it is averred in said affidavit that the distance from San Francisco to Martinez is thirty-five miles and that between the places there is a regular communication by mail. The exact time said amended pleading arrived in Martinez is not shown, but it positively appears that, notwithstanding the entry of said default judgment on Saturday, March 31, 1923, said amended pleading was filed by the county clerk on Monday, April 2, 1923, and that the same thereafter continued to remain a part of the files in the action. Such fact is established by the duly authenticated amendment to the record brought up on a motion for diminution thereof.

Appellant’s first contention on this appeal is that the order appealed from was based upon a defective affidavit of merits in that said affidavit was made by the attorney for defendants, and not by the defendants themselves; that no

[338]

reason was given therein why said affidavit was not made by one of the parties; that it contained no averment that said attorney was familiar with the facts, and that the statement made therein that “the defendants have a good and sufficient defense on the merits to said action” was insufficient.