Nicoll v. Weldon

California Supreme Court Dec 15, 1900 No. L.A. No. 779.Published

Before: Harrison

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Holding. The court affirmed the trial court's order setting aside a default judgment, holding that such decisions are within the trial court's discretion and should be liberally construed to allow cases to be decided on their merits.

Issues

Whether the trial court abused its discretion in setting aside a default judgment based on excusable neglect.
Whether the plaintiff suffered material prejudice by the setting aside of the default judgment.

Disposition. Affirmed

Quotations verified verbatim against the opinion

“The granting or denying a motion to set aside the default of a defendant is so largely a matter of -discretion with the trial court that, unless it is clearly made to appear that there has been an abuse of this discretion, this court declines to set aside its order.”

“Section 473 of the Code of Civil Procedure is a remedial provision, and is to be liberally construed so as to dispose of cases upon their substantial merits”

Synopsis

Practice—Setting Aside Default—Discretion.—The granting or denying of a motion to set aside the default of a defendant is so largely a matter of discretion with the trial court that, unless it clearly appears that there has been an abuse of this discretion, the appellate court declines to set aside the order. This discretion is best exercised when it tends to bring about a judgment upon the merits.

Id.—Motion Granted on Terms.—The terms imposed by the court as a condition to granting a motion of the defendant to set aside a default must, in the absence of any contrary showing, be held to be ample compensation to the plaintiff for any injury he may have suffered by the delay occasioned by the motion,

HARRISON, J.

After judgment had been entered against "the respondents in this action upon their default, they made application to the court to have the judgment set aside and leave granted them .to answer, upon the ground that their default and the judgment entered thereon was taken against them through inadvertence and 'excusable neglect; and in support of their motion presented affidavits setting forth the facts upon which they relied. At the hearing of the motion m> counter-affidavits were filed, and the court granted their motion upon the condition that they pay into court for the use of the plaintiff the sum of twenty-five dollars. Prom this order the plaintiff has appealed.

The granting or denying a motion to set aside the default of a defendant is so largely a matter of -discretion with the trial court that, unless it is clearly made to appear that there has been an abuse of this discretion, this court declines to set aside its order. Especially are we indisposed to review its action when it has set aside the default, and it does not appear that the plaintiff has sustained any prejudice thereby. This discretion of the court is best exercised when it tends to bring about a judgment upon the merits of the controversy between the parties.- Section 473 of the Code of Civil Procedure is a remedial provision, and is to be liberally construed so as to dispose of cases upon their substantial merits, and to give to the party claiming in good faith to have a substantial defense to the action an opportunity to present it.

(Buell v.

Emerich,

[668]

Cal. 116;

Harbaugh v. Honey Lake etc. Water Co.,

109 Cal. 70;

Melde v. Reynolds,

129 Cal. 308.) It is for this reason that we more readily listen to an appeal from an order refusing to set aside a default, than where the motion has been granted, since in such case the defendant may be deprived of a substantial right, whereas it may be assumed, if nothing to the contrary is shown, that the plaintiff will he able at any time to establish his cause of action. If, for any reason, he will he unable to do so, that fact should be made to appear; hut if he is merely subjected to delay or inconvenience by having the default set aside, he can be compensated therefor by the terms which the court will impose as the condition of granting the motion.

Nicoll v. Weldon

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Synopsis

HARRISON, J.

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