Jergins v. Schenck

SLOSS, J.

The plaintiff took judgment by default upon the failure of the defendants to answer within the time allowed after the overruling of their demurrer to the second amended and supplemental complaints. The defendants moved to vacate the default and judgment on the ground of excusable

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neglect, and their motion was granted. From the order granting this relief the plaintiff appeals.

The showing made by the defendants in support of their motion was not contradicted by any evidence on the part of the plaintiff. The only question is whether the facts set forth in the affidavits offered by the defendants were sufficient to authorize the court to find that the failure to answer had been the result of a neglect that was excusable.

The law governing this class of cases is so well settled, and has been so often declared in the decisions of this court, that we may dispense with the citation of authority. An application to be relieved from a default under section 473 of the Code of Civil Procedure, is addressed to the sound discretion of the trial court, and the action of that court will not be set aside on appeal unless an abuse of discretion clearly appears. Any doubt that may exist should be resolved in favor of the application, to the end of securing a trial upon the merits. The appellate court will, therefore, be less inclined to reverse an order granting, than one refusing, an application to open a default. Indeed, the cases in which this court has held that such relief was improperly granted are very rare, while in a number of instances an order refusing to open the default has been reversed.

Applying these principles, we entertain no doubt whatever that the court below did not abuse its discretion in granting the application in this case. The affidavits filed justified the conclusions that the defendants at all times desired and intended to contest the suit; that the attorney in charge of the defense had reasons not entirely without basis for believing that the demurrer would not be acted upon as soon as it in fact was; that he was not aware that the demurrer had been overruled until after the default had been entered, and that his ignorance in this respect was due in part to his reliance upon a custotii of the clerk of the court to notify counsel of orders overruling or sustaining demurrers (a custom which was not followed in this instance) and in part to reliance upon his own clerk who, by reason of inexperience and a not unpardonable inadvertence, had failed to ascertain and to note the true