Rogers v. Schneider

SEAWELL, J.

This is an appeal by plaintiff from an order setting aside, upon motion of defendants, a default

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judgment entered in plaintiff’s favor. The action was one whereby plaintiff sought to recover an unpaid balance of ten thousand three hundred dollars alleged to be due him on a contract made with defendants for the alteration of an apartment house owned by defendants, and to foreclose a mechanic’s lien on said property for said balance.

The uncontroverted evidence introduced in the court below, upon the hearing of the motion to set aside the judgment obtained by default against the defendants, discloses a singular and unwarranted course of conduct pursued by appellant against his adversaries, the respondents herein. The record shows that the complaint was filed in court below on April 5, 1926. A copy of the complaint and summons was never served upon the defendants (respondents) but a copy of the complaint and summons was mailed by appellant’s attorney, D. Chase Rich, to respondents’ attorney, Fred E. Peterson, and received by the latter on April 6, 1926. Inclosed in the same envelope containing a copy of the complaint and summons, appellant’s attorney addressed the following letter to respondents ’ attorney, omitting the formal parts:

“As per my conversation with your partner yesterday, I enclose herewith summons and complaint in Superior Court case No. 193287, J. W. Rogers v. Frank Schneider, et al. Tour partner stated over the telephone that upon receipt of the summons and complaint that you would enter a formal appearance for your clients.”

On April 14, 1926, said attorney for defendants (respondents) made an affidavit to obtain the examination of the plaintiff by deposition, as provided by the Code of Civil Procedure, section 2021, and for an order to inspect the original contract upon which the pending action was based, which was averred to be in the possession of plaintiff. After setting forth in the application for the order the title of the court and cause, the caption of the particular proceeding, designated “Affidavit for Subpoena Taking Deposition,” appeared immediately thereunder. The first sentence of the application was in these words: “That he [defendants’ attorney] is attorney for and hereby appears for defendants in the above entitled