County of Los Angeles v. Lewis

ANGELLOTTI, C. J.

This is an appeal by plaintiffs from an order granting the motion of defendant Lewis to set aside his default entered for his failure to plead within the time allowed therefor by law.

By the same order the court vacated the judgment entered upon the default on the day that notice of the motion was filed, although neither the notice of motion nor the motion itself asked for such relief. We agree with the district court of appeal of the second appellate district, that if the default was properly set aside, there no longer existed any basis for the judgment, and the court was warranted in setting aside the same.

The motion was one under section 473 of the Code of Civil Procedure, and in substance one upon the ground of mistake, inadvertence, and excusable neglect. Summons was served in the action on February 1, 1918, and the last day for Lewis to plead was February 11, 1918. The default of Lewis was entered on February 13, 1918. On the last-named day, subsequent to the entry of the default, he served his answer on the plaintiffs and offered the same to the clerk of the court for filing. It was not filed, but the clerk has ever since had' it in his custody. No denial as to any of these matters is contained in the counter-affidavit filed by plaintiffs on this motion. On February 15th, notice of the motion to set aside the default was served and the same, being heard on February 18th, was thereupon granted.

[400]

The notice of motion stated that it would be based upon "said answer and the affidavits attached hereto,” but no copy of the answer was served with such notice. Section 473 of the Code of Civil Procedure, as amended in 1917, [Stats. 1917, p. 242], provides that such an application as was here made "must be accompanied with a copy of the answer, or other pleading proposed to be filed therein, otherwise said application shall not be granted.” The principal point made on this appeal is that this application was not "accompanied” by a copy of the answer, within the meaning of this provision, and, therefore, that it was error to grant it. We think that, in view of the facts stated, the application was in substance and effect so accompanied, and that to hold otherwise would be to deny Lewis’ right to ax hearing on the merits by an unnecessarily strict construction ^of the provision. The plain object of the provision was simply to require the delinquent party seeking leave to contest on the merits, to show his good faith and readiness to at once file his answer in the event that leave is granted by producing a copy of the proposed answer for the inspection of his adversary and the court. Substantial compliance with the provision of course requires such production in connection with the application for relief. Here admittedly the proposed answer was served (by delivery of copy) on the adverse parties two days before the giving of the notice of motion, and thereupon offered for-filing and left in the custody of the clerk. The notice of motion showed that this was the answer that Lewis desired to file and that the motion would be based in part upon the same, and the affidavit of Lewis, a copy of which was served with the notice of motion, showed that the answer desired to be filed was the one served and offered for filing on February 15, 1918, which had ever since that date been in the custody of the clerk. The provision of section 473 of the Code of Civil Procedure, here involved, like the remainder of the section, must be liberally construed with a view to substantial justice, and we are of the opinion that it must be held that, in view of the facts stated, the application for relief was "accompanied” with a copy of the answer proposed to be filed.