Merchants' Ad-Sign Co. v. Los Angeles Bill Posting Co.

COOPER, C.

This is an appeal from an order vacating the default of defendants and setting aside a judgment against them through such default. It is claimed that the court abused its discretion, and that the facts were not such as to justify the court in making the order. The facts disclosed were such that the court might well have denied the motion. But we do not possess the discretion that is necessarily vested in the trial court, and, although we might have differed from the court in the conclusions reached if we had passed upon the evidence in the first instance, here we must determine whether or not the court abused the legal discretion vested in it. It is only in cases of the abuse of such discretion that we would be justified in reversing an order of this kind. The attorney for defendants filed and read his own affidavit, in which he stated that, prior to the expiration of the time for answering, he had a conversation with one of the attorneys for the plaintiff, in which he. stated to said attorney that two of the defendants, Campbell and Sterling, had ceased carrying on the business of bill posting, and Sterling intended to leave for Mexico, and Campbell to go into another line of business. That several such conversations were had by defendants’ attorney with plaintiff’s attorney about a proposed dismissal of the case. That plaintiff’s attorney said he would investigate, and, if he became satisfied that Campbell and Sterling had quit the business of bill posting and advertising in Los Angeles, he would dismiss the case, and that defendants’ attorney need not do any more work or go to any more trouble in relation to the case until he was notified of the decision as to the proposed dismissal, and that the attorney for plaintiff said, “Let the matter rest as it is for a while, and I will inquire into the matter and discuss it with my client and let you know our decision.” And the affidavit further states that in speaking about time for answering the attorney for plaintiff said: “Oh, take all the time you want; we can’t try the case until after vacation, anyway.”

[621]

The affidavit further states that the attorney for defendants became ill and was confined to his bed before his time for answering had expired, and continued to be ill and confined to his room most of the time for several days after the entry of default. These matters were nearly all denied by the attorney for plaintiff in a counter-affidavit. It was the peculiar province of the judge of the court below to determine the truth from the conflicting statements in the affidavits. He may have believed that the affidavit of the defendants’ attorney stated the truth fully as to the conversations.