Anglo California Trust Co. v. Kelly

TYLER, P. J.

Appeal from a default judgment. The action was one brought for the foreclosure of two mortgages. The case was regularly set for trial and defendants failing to appear, the court took evidence and entered its decree of foreclosure. This decree was recorded on March 27, 1926, and notice thereof was duly given to defendants. Thereafter a notice of motion to set aside the default was made under the provisions of section 473 of the Code of Civil Procedure. The motion came on regularly for hearing and was denied and the sole question here presented is whether or not the trial court abused its discretion in refusing to vacate the decree. It is, of course, elementary, that the action of a court upon an application to set aside a default, or grant relief therefrom, rests so largely in its discretion that it will not be disturbed on appeal unless it shall be made clearly to appear that there was an abuse of this discretion

(Pickerill

v.

Strain,

196 Cal. 683 [239 Pac. 323]). While it has been said in some cases that this discretion is better exercised when it tends to bring about a decision of the cause upon its merits, the rule itself has never been relaxed.

(Ingrim

v.

Epperson,

137 Cal. 372 [70 Pac. 165].) The matter being discretionary and reviewable only for

[392]

abuse, it may well be that this court would sustain an order denying such relief in one case and deny it in another, where the facts presented to the lower court were practically the same in both, because this court would not say that there was an abuse of discretion in either event

(Lynn

v.

Knobb etc. Co.,

177 Cal. 56 [169 Pac. 1009]). In other words, it must be shown that the order is without any evidence whatsoever to sustain it. Considering all the facts and circumstances as disclosed by the record, we are of the opinion that the court below did not abuse its discretion in refusing to vacate and set aside the decree. It appears from the affidavits presented on the motion that the case was twice regularly noticed for trial. At the time of the first setting of the cause defendants’ attorney requested that the matter be allowed to stand over for three weeks upon the understanding that no further continuance would be asked for. Upon this agreement being made the attorneys for both parties called upon the clerk of department 16 of the court, where the cause was pending, and arranged for a day of trial. The matter was set for March 25, 1926, and plaintiff’s attorney served notice of the new date of trial. The matter thereafter continuously appeared on the calendar of department 16 up to the time the default was entered. Prior to the date when the case was thus set for trial defendants’ attorney, who resided in Visalia, sent a written communication to plaintiff’s attorney informing him that he had received notice of the setting of the cause. This communication contained a proposed amended answer, which was subsequently filed. Defendants’ attorney asked for the exact amount claimed to be due, but before a reply was given, defendant John J. Kelly called personally upon plaintiff’s attorney and made a similar request. The exact amount due was stated to him, whereupon he attempted to enter into a discussion concerning the matter. Plaintiff’s attorney refused to talk about the case except upon the question of immediate payment of the amount due, giving as a reason for such refusal that defendant was represented by an attorney and should act through him. Kelly then made the statement that he would demand a jury. He was informed that the suit being one in equity, defendants were not entitled to a jury trial. Thereafter Kelly personally consulted with certain officers of the court and filed a de