Johnston v. Callahan

VAN DYKE, J.

This is an t appeal from the judgment of the superior court of Placer County. The action was for the recovery of $380.80 for goods sold and delivered, and work, labor, and services. It appears that the case was heard and judgment rendered in the absence of the defendant or his counsel, and in his appeal defendant’s counsel says: “With a rush that was well-nigh indecent, and against the urgent protests of counsel for the defendant, the case was hurried to trial in the lower court and judgment entered against defendant. From this judgment defendant appeals and claims that it should be set aside:—

“1st. Because no notice of motion to set for hearing was given and there is no record of any such notice in the papers of the case on file in the superior court of Placer County.

“2nd. Because no notice of the time fixed for hearing was given defendant and appellant, and there is no record of such notice in the papers in the case on file in the superior court of Placer County.

“3rd. Because, on the assumption that an informal communication in a letter to the defendant’s counsel may have been sufficient to put him on his guard, the notice therein conveyed was nevertheless too short.

“The defenses here offered may be technical, but are justifiable on the ground that they are the only resort against the injustice of what is commonly known as a ‘snap judgment’ taken by default.”

There is no bill of exceptions or statement brought up with the judgment, and the appeal must be determined by what is disclosed in the judgment-roll alone,—that is, the pleadings and the judgment,—as in this case a failure to appear on the part of defendant was a waiver of findings on his part. (Code Civ. Proc., secs. 634-670 )

The complaint in the action was filed November 3, 1901, and the answer thereto April 21, 1902, and the trial was had June 2, 1902. In the judgment it is recited that “It appearing to the court by competent and satisfactory evidence that the defendant was duly notified more than five days prior to the 2d day of June, 1902, that the above entitled cause was set for trial for Monday, June 2d, 1902, at the hour of ten o’clock,

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