Quan Quock Fong v. Lyons

ALLEN, P. J.

This appeal is by plaintiffs from an order vacating a judgment and setting aside a default theretofore made and entered against defendants.

An action, the character of which, or .the sufficiency of the complaint to state a cause of action, is not disclosed, was commenced on December 13, 1911, by plaintiffs against defendants, and on December 21st defendants entered their appearance, one of the defendants filing a general demurrer to the complaint, and the other defendants filing a notice of

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motion to require plaintiffs to state more specifically certain matters generally alleged. The demurrer was on January 8, 1912, overruled, and on the same day the motion of the other defendants was denied. On January 10, 1912, the default of the defendants, other than the demurring defendant, was entered, and on January 22d the court ordered a judgment to be entered against all of the defendants, except the demurrant. On January 19th the defendants, other than the demurrant, served notice of a motion to vacate the judgment and default, the same to be heard January 29th, which notice of motion stated that the same would be based upon the following grounds, to wit: 1. On the affidavit of C. W. Stahl, a copy of which was attached to and made a part of the motion; 2. On the verified answer duly served on plaintiff’s attorneys January 17th, and then in the possession of the clerk of the superior court of Los Angeles County; and 3. Based upon the pleadings, files, and record of the cause. The affidavit of Stahl alleged that at the hearing of the demurrer and motion on January 8th, the court, when it overruled the demurrer and denied the motion, made and announced from the bench and entered upon the court calendar an order giving the defendants ten days in which to prepare and file their answer, which answer was prepared and offered for filing within the time specified, and the same was delivered to the clerk, who refused to mark the same as filed because of the entry of a previous default. Service of the answer of the demurring defendant was admitted. The record shows that the hearing of the motion to vacate was, by stipulation, continued to February 19, 1912, upon which date the same came on for hearing, and upon which hearing only the affidavit of Stahl was received and presented to the court and the court vacated the judgment and set aside the default of defendants. From this order plaintiffs appeal upon a bill of exceptions which discloses the matters hereinbefore stated.