Cann v. Parker

THOMPSON, J.

This appeal is from an order denying the defendant’s motion to set aside and vacate the judgment and her default for failure to appear in the action. The complaint in the form of a claim and delivery action upon a conditional sales contract with a claim of three hundred dollars damages for detention was filed on January 5, 1923, and the motion was first noticed for March 21, 1923. The reason assigned by the defendant in her affidavit for not answering is that when the sheriff demanded possession of the automobile and served her with a copy of the summons, which was on January 5, 1923, he stated to her that if she delivered the car to him, that it would not be necessary for her to appear, that no judgment could be entered in the action except for its possession. In the same affidavit she averred that after fully stating the facts to her counsel she was informed by him that she had a “good legal defense to’’ the action. She tendered an answer at the same time in which by failure to deny it was admitted that plaintiffs were the owners of and entitled to the possession of the automobile, but denied that demand had been made for possession prior to the institution of the action, and denied that she had detained the automobile, and denied damage in the sum of three hundred dollars or any other sum. In response to this affidavit the plaintiff filed two reply affidavits, which contained almost exclusively averments relat

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ing to the question of whether plaintiff had demanded possession, and whether defendant had detained possession, and whether plaintiff had been damaged by the detention. There is only one statement in the reply affidavits that may be considered as going to the question of inadvertence or excusable neglect, which is a denial that defendant relied upon the statement of the sheriff. On the first hearing the court, on motion of defendant, granted a continuance for the purpose of allowing her to make a further showing as to the merits of her defense either by way of further affidavits or by amended answer. Further affidavits were filed to the same effect as previously, but the proposed answer was not amended nor was the affidavit of merits. The additional statement was made that the defendant did not have the funds with which to employ counsel for advice and therefore she relied upon the statement of the deputy sheriff. The motion was denied.