Colthurst v. Harris

CAMPBELL, J., pro tem.

This is an appeal from an order denying defendant’s motion to vacate and set aside the default entered against him for failure to answer the complaint and to vacate the judgment entered thereon awarding plaintiff damages for personal injuries and nervous shock sustained while she was riding as a guest in defendant’s automobile which was overturned, as it is alleged, through the reckless and negligent management of the automobile by the defendant. Respondent has moved for an

[431]

order affirming the judgment, but as the motion presents the same question raised on the appeal, we deem it unnecessary to pass separately upon the motion.

The summons was served on defendant on December 30, 1926; the default for failure to appear and answer the complaint was entered on February 3, 1927, and the judgment was entered on May 9, 1927. On May 18, 1927, defendant filed a notice of motion to set aside the default on the ground that the default and judgment were taken against him and entered through the mistake, inadvertence, surprise, and excusable neglect of himself and his attorney. On May 23, 1927, an amended notice of motion to set aside the default, order for judgment, and judgment was filed and noticed for Monday, June 6, 1927. Ten days before the motion was to be heard Attorney Stafford, representing plaintiff, in a letter to defendant’s attorney requested a continuance to June 13th, to which defendant’s attorney consented. The motion was regularly on the calendar, and the court in accordance with such request on June 6th made its order continuing the motion until June 13th. On June ,13th by consent the court continued the motion until June 21st. On June 17th defendant’s attorney received a telegram from plaintiff’s attorney asldng a continuance for one week, and defendant’s attorney consenting, the court continued the motion as requested. On June 24th defendant’s attorney received another telegram from plaintiff’s attorney requesting a continuance of one week from June 27th, and defendant’s attorney consenting, the motion was accordingly continued. Because of such continuance and the absence of the trial judge, the hearing of the motion went over until July 19th, when the court made its order continuing the motion until August 8th. The matter was then continued until August 15th at the request of appellant’s counsel. The matter was finally heard on August 15th, and on September 12th the court made its order “that the affidavits filed present sufficient ground for the granting of the motion, but owing to the lapse of time, that the court has no jurisdiction to entertain the motion, and the motion is therefore denied.” It is conceded that at no time from the filing and service of the notice of motion to set aside the default until August 15th—twelve days beyond the six months’ period allowed by the statute (Code Civ. Proc., sec.