Melde v. Reynolds

HARRISON, J.

Judgment herein was rendered in favor of the plaintiff and against the defendant April 23, 1897, and was entered of record April 26th. May 25th the defendant gave notice of a motion to vacate and set aside the judgment, upon the ground that it was rendered through mistake, inadvertence, and excusable neglect on his part, accompanying the same with certain affidavits in its support. At the hearing of the motion counter-affidavits and other documentary evidence were presented on behalf of the plaintiff, and the motion was denied. From this order the defendant has appealed.

It appears from the bill of exceptions that the complaint was filed in May, 1889, and that in July of that year the defendant filed an answer denying all the allegations of the complaint. No action was taken by either party tending to bring the case on for trial, and in 1890 it was dropped from the calendar by stipulation. In November, 1896, the attorney for the defendant gave notice of a motion to dismiss the action. This was met with a counter-motion on behalf of the plaintiff to set the cause for trial. Both motions were heard at the same time, and the court denied the motion to dismiss and set the action down for trial for April 23, 1897—that day being agreed upon by the attorneys for both parties. A few days prior to that date Mr. Shadbourne, the attorney for the defendant, informed him of these facts, and on the following day the defendant visited him at his office, and upon expressing dissatisfaction at his course Mr. Shadbourne suggested that he get another attorney, which he said he would do, and Mr. Shadbourne thereupon gave him the papers in the cause. The defendant thereupon employed Messrs. Smith and Murasky as his attorneys, and on the next day Mr. Murasky instructed his managing clerk to ascertain what proceedings had been taken in the case, and was informed by him, after such examination had been made, that the action was pending in Department No. 4 of the superior court, and that a motion to set the cause for trial had been granted, but that the date for said trial was not contained in the records of

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the case. Mr. Murasky then inquired of the clerk, and also of the judge of that department, upon what day the trial of the cause had been set, and was informed by each of these officers that, as the cause did not appear upon the calendar for any date, it would not be reached for trial for at least three months. He thereupon informed the defendant that there was no likelihood of a trial being had for several months, and on the 21st of April the defendant left San Francisco for Japan. When the action was originally brought it was assigned to Department No. 4, and has subsequently been transferred to Department Ho. 5, but Mr. Murasky had no knowledge of such transfer until after the judgment had been rendered. On the 23d of April no appearance was made in behalf of the defendant, and the cause was tried and judgment rendered in favor of the plaintiff.