Waite v. Southern Pacific Co.

KERRIGAN, J.

This is an appeal from an order denying defendant’s motion to vacate and set aside a default judgment.

On January 19, 1921, plaintiffs filed their complaint in the superior court of Los Angeles County, alleging that they delivered to defendant, a common carrier in interstate commerce, goods of the value of $3,326.10 to be transported from Portland, Oregon, to Los Angeles, California," and which through the negligence of the defendant were destroyed by fire at Quail, California. Recovery was sought for their value.

On January 31, 1921, defendant filed a demurrer to the complaint, and at the same time filed a petition for the removal of the cause to the United States district court for the southern district of California on the ground that the action involved a law of the United States. On February 15, 1921, the petition and demurrer came on for hearing, and the petition was thereupon denied and the demurrer overruled by the court, with ten days’ leave to defendant to answer.

On March 2, 1921, defendant filed in the said federal court a transcript of the record and a petition for removal thereto from said superior court, and while the action was pending in the federal court the plaintiffs, on March 26, 1921, caused default to be entered against the defendant in the state court for failure to answer within the required time. Judgment upon said default was entered April 14, 1921. The defendant having in the meantime filed its answer in the federal court, the plaintiffs, on April 11, 1921, filed in said court their motion to remand the cause to the state court. This motion was submitted for decision on A.pril 18, 1921, and granted on August 6, 1921. Thereafter, on September 12, 1921, defendant filed in the state court notice of motion to set aside and vacate the judgment by default, which motion was denied on September 19, 1921. From- the order in that behalf made the defendant prosecutes the present appeal.

[469]

The motion to set aside the judgment was made under section 473 of the Code of Civil Procedure, providing for relief from orders made through the “mistake, inadvertence, surprise, or excusable neglect” of those against whom they are rendered. In effect, the ground of the motion was that defendant suffered its default to be entered and judgment thereon to be rendered because of its mistaken belief that jurisdiction of the cause was in the federal and not the state court. Whether this mistake on the part of the defendant is of such a character as to entitle it to the relief sought is practically the only point involved on this appeal.