Younger v. Moore

COOPER, P. J.

This is an 'appeal by Charles Moore, Stella Moore, Alice Hoffmann and William C. Hoffmann, from an order denying their motion for a new trial. The case is the same as No. 488 of the same title this day decided, [rehearing granted] but involves a different question as to the rights of appellants on this appeal.

It appears from the record that each of the appellants was regularly served with summons, and made default, which

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default was duly entered. The defaults were entered in August, 1902, and not until the trial had commenced in December, 1903, was any motion made by said appellants to be relieved of the default. The court held—and it seems to be conceded—that the application having been made more than six months after the entry of the defaults, it had no power, upon the showing made, to relieve the defendants by setting aside such defaults. Accompanying the application of appellants, and as a part thereof, was an answer, which they served with their motion and asked to be permitted to file in case the defaults were set aside. This answer alleged that the appellants, Charles Moore, Stella Moore and Alice Hoffmann, are (each) the owners of an undivided one-fourth interest in and to “all the tract of land described in plaintiff's complaint lying and being situate south of the county road leading from the city of Santa Cruz in said county of Santa Cruz in the State of California, to the town of Pescadero.” They further stated that as to the proportions in which the remaining one-fourth of the tract is owned they had no information or belief sufficient to enable them to answer. The answer sets forth a plea in abatement of another action pending in regard to the same subject matter, and alleged to be between the same parties. During the discussion of the motion of these appellants to have the default set aside and to be permitted to file their said answer, counsel on the part of the plaintiff and the other parties to the suit stated that, notwithstanding the default of appellants, they had no objection to the action being tried on its merits, and to the appellants offering testimony as to what their rights were; but that they objected to having any delay in the matter by setting aside the defaults. The court remarked that it was not the policy of the law to set aside a default so that the defendant could put in a plea in abatement. After some preliminary discussion the following took place: