Pickerill v. Strain

WASTE, J.

A judgment, after default, was entered against the defendant, and he has appealed on the judgment-roll and a bill of exceptions which presents only the matters relating to the refusal of the lower court to set aside the default.

The plaintiff commenced an action in the superior court of Kings County and the defendant was served with complaint and summons in Los Angeles County on December 6, 1922, as he was about to depart from the state. The defendant returned to California on January 2,1923. On January 5th, demurrer to the complaint and papers on motion for a change of place of trial were served on the plaintiff’s attorneys by mailing, and the originals, unaccompanied by any filing fees, were forwarded to the clerk of the court in which the action was pending. On the next day, January 6th, the plaintiff, who is the county clerk of Kings County, noted the default of the defendant, and thereupon entered judgment in his own favor for the full amount prayed for in the complaint. On January 22d the defendant served affidavits and notice of motion to set aside the default and judgment on the ground of excusable neglect, and upon the further ground that plaintiff, as clerk of the court, was disqualified from entering either a default or a judgment. A counter-showing was made by the plaintiff, and upon due consideration the court denied the motion to open the default, but made an order setting aside the judgment. Thereafter, according to the record, the action was “set down for trial . . . before the court sitting without a jury; whereupon witnesses on the part of the plaintiff were sworn and examined, and the evidence being closed, the cause was submitted to the court for consideration and decision,” and judgment was ordered for the plaintiff in accord with the proof made. The defendant filed notice of appeal “from the judgment made and entered in said Superior Court in the above entitled action on the 7th day of August, 1923, in favor of the plaintiff in said action and against the defendant, for the sum of $1750.89 and costs, and from the whole thereof,”

[685]

The respondent urges, in opposition to a consideration of the appeal, the contention that appellant cannot he heard in support of his plea that the court erred in refusing to set aside his default, for the reason that no appeal has been taken from that order. There is no merit in the objection. No direct appeal lies from an order denying a motion to vacate a default. (Code Civ. Proc., sec. 963;