Smith v. Pelton Water Wheel Co.

ANGELLOTTI, J.

These are appeals by defendant from a judgment given against it for $5,642.95, and from an order denying its motion to vacate and set aside such judgment. The judgment was given upon the failure of defendant to answer after its demurrer to the complaint had been overruled, its default for not answering having been duly entered. After the taking of the appeals William T. McArthur was substituted as plaintiff.

It is admitted that no error or irregularity is shown by the judgment-roll. The only contention made on these appeals is that the lower court erred in denying the motion to vacate and set aside the default and judgment.

The motion to vacate was based on the ground that the default and judgment were taken against defendant through mistake, inadvertence, surprise, and excusable neglect. The action was commenced in the superior court of Los Angeles County on July 28, 1903. On August 14, 1903, a demurrer

[396]

to the complaint was filed by a San Francisco law firm retained by defendant. This law firm continued in charge of the case for defendant throughout the proceedings in the lower court, but employed a Los Angeles attorney as associate counsel. The demurrer was overruled January 25, 1904, with leave to defendant to answer within ten days. The Los Angeles attorney was regularly notified of this action of the court on February 5, 1904, and informed by opposing counsel that the plaintiff was urging a speedy trial, and that the answer must be filed in due time, or a default would be entered. Orders extending the time to answer were obtained from the court, the last expiring about March 12, 1904. In the mean time, on March 9, 1904, defendant perfected an appeal from an order theretofore made in the action refusing to grant its motion for a change of place of trial from Los Angeles County to the city and county of San Francisco. No answer was filed, and on March 16, 1904, the default of defendant and judgment for plaintiff in accord with the prayer of the complaint were regularly entered. It is undisputed that both the Los Angeles and San Francisco attorneys had actual knowledge of the entry of judgment during March, 1904. No intimation of any intention to move to vacate the default and judgment was given until July 16, 1904, four months after their entry. On that day notice of such a motion to be made on July 22, 1904, accompanied by copies of certain affidavits and a proposed answer and cross-complaint, was served on plaintiff’s attorney. The only reason advanced for the failure to answer was that the Los Angéles attorney mistakenly believed that defendant’s appeal from the order refusing to change the place of trial operated as a stay of all proceedings pending the appeal, and therefore did not cause an answer to be filed. Counter-affidavits were filed, and in one of these affidavits it was alleged that subsequent to the entry of the judgment some of plaintiff’s witnesses had disappeared, and plaintiff no longer knew where they could be found. The motion to vacate was denied on August 3, 1904, but, by leave of the court,' it was renewed on August 12, 1904, additional affidavits being presented on behalf of both parties, and denied. The evidence before the lower court showed that the San Francisco law firm at all times retained control and management of the case for de