Winchester v. Black

HARRISON, J.

Appeal from an order setting aside a default and judgment entered thereon.

The default of the respondent, and judgment against her in

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behalf of the plaintiff, was entered November 23, 1899, and on December 4, 1899, a notice was given, in her behalf, to the attorneys for the plaintiff, of her intention to move to set the same aside, upon the ground that they had been entered by reason of mistake, inadvertence, surprise, and excusable neglect on the part of herself and her attorney. This motion was granted, by the court, and the plaintiff has appealed.

It appeared from the affidavits and other evidence presented to the court at the hearing of the motion that a demurrer to the complaint was filed on behalf of the respondent herein in June, 1896, and placed upon the motion calendar in department 2 of the court, and that the hearing of the same was by consent of the parties continued from week to week for several weeks. A case involving questions similar to those presented by the complaint herein was then pending in this court, and it was the desire of all the parties that the hearing upon the demurrer should be continued until after the decision in that case. Accordingly, in March, 1897, the demurrer was stricken from the calendar. In September, 1897, the cause was transferred from department 2 to department 1 of the superior court, without any notice to or knowledge thereof by the attorney for the respondent, and on October 4th the demurrer was placed upon the law and motion calendar of that department for the next motion day,—viz., October 8, 1897. On that day no one appeared in its support, and the court made an order dismissing the demurrer for want of prosecution. Rule 17 of that court, which was in force at the time the court made this order, is as follows: “ When a demurrer to a pleading is overruled or sustained, ten days after notice shall be allowed the adverse party to answer or amend, unless, upon some good ca,use shown, further time is given. But the court reserves the right to refuse leave to answer or amend, when proper, and in granting such leave will impose such terms as it may deem proper.” In making the order dismissing the demurrer, the court did not refuse leave to answer, nor did it impose any terms upon which an answer to the complaint might be made. No notice of the order dismissing the demurrer was given to the attorney for this defendant, nor does it appear that any further proceedings were had in the cause until November 23, 1899, when default and judgment thereon were entered by the clerk.