Sharp v. Paulson

MR. JUSTICE PLUMMER Delivered the Opinion of the Court.

This is an appeal from an order denying the defendants’ motion to set aside a default judgment.

The transcript in this cause, among other things, sets forth a copy of the opinion of the trial court, stating the reasons why the appellants’ motion was and should be denied. An examination of the record discloses that everything contained in the opinion of the trial court is amply supported, and that no other conclusion could be reasonably drawn from the facts presented for our consideration. For this reason we have adopted the opinion of the trial court as our own opinion, as follows:

“ This cause is before the court upon defendants’ motion to vacate and set aside a default judgment herein. The motion is made under the provisions of section 473 of the Code of Civil Procedure upon the ground of inadvertence, surprise and excusable neglect. The matter was sub

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mitted to the court upon the affidavit of merits of Owen E. Paulson, the proposed answer of the defendants, the records and files in the case and oral and documentary evidence.

“The record shows that the action was commenced on June 14, 1928. That the demurrer of the defendants was filed June 22, 1928. Upon stipulation of counsel to that effect, the court, on July 17, 1928, overruled said demurrer and allowed the defendants twenty days to answer. The default of the defendants for failure to appear and answer was entered October 9, 1928. On October 26, 1928, .upon evidence submitted by the plaintiff, a judgment against said defendants was entered. Notice of entry of this judgment was served on counsel for defendants October 30, 1928. Execution was issued and levied on property belonging to the defendants on November 30, 1928. The property was sold, and return of sale made by the sheriff December 12, 1928. Defendants’ application to open the default was dated January 29, 1929. The affidavit of merits by Owen Paulson was executed January 22, 1929.

“It appears from the oral testimony that a settlement was being negotiated between the parties but was ineffectual. On August 29, 1928, counsel for defendants notified them that he was unable to settle the case except upon certain conditions and that he must have a reply from them by Friday morning, or one of them must be in Susan-ville at that time.