Bailey v. Taaffe

By the Court, Sanderson, J. This is an appeal from an order setting aside a judgment by default. It is claimed by appellant that the affidavit upon which the order was made is fatally deficient in the two essential particulars of excuse and merits. We are of the opinion that both points are well made.

An affidavit on motion to vacate a judgment under the sixty-eighth section of the Practice Act must show—First, that the default occurred through mistake, inadvertence, surprise or excusable neglect; and second, that the defendant has a meritorious defense to the action. If the affidavit is materially deficient in either of these respects, the judgment ought not to be vacated.

It is true, as claimed by the learned counsel for the respondents, that orders like the present, in legal parlance, rest very much in the discretion of the Court below, and will not be disturbed by this Court unless we are satisfied that the order is so plainly erroneous as to amount to an abuse of discretion. (Roland v. Kreyenhagen, 18 Cal. 455; Haight v. Green, 19 [424]Cal. 113; Mulholland v. Heyneman, 19 Cal. 605; Barrett v. Graham, 19 Cal. 632; Woodward v. Backus, 20 Cal. 137; People v. O'Connell, 23 Cal. 281; Howe et al. v. The Independent Consolidated Gold and Silver Mining Company, 28 Cal. 72.)

The discretion intended, however, is not a capricious or arbitrary discretion, but an impartial discretion, guided and controlled in its exercise by fixed legal principles. It is not a mental discretion, to be exercised ex gratia, but a legal discretion, to be exercised in conformity with the spirit of the law and in a manner to subserve and not to impede or defeat the ends of substantial justice. In a plain case this discretion has no office to perform, and its exercise is limited to doubtful cases, where an impartial mind hesitates. If it be doubted whether the excuse offered is sufficient or not, or whether the defense set uj) is with or without merit in foro legis, when examined under those rules of law by which Judges are guided to a conclusion, the judgment of the Court below will not be disturbed. If, on the contrary, we are satisfied beyond a reasonable doubt that the Court below has come to an erroneous conclusion, the party complaining of the error is as much entitled to a reversal in a case like the present as in any other.

Affidavit on motion to set aside a default.

There is no pretense of mistake, inadvertence, or surprise in the affidavit in this case. The relief sought is asked solely on the score of excusable neglect; and upon that subject all that is said is in substance that on account of the complicated condition of the defendants’ title, and from the fact that the complaint was verified, more time was required to prepare the answer than is required in ordinary cases, and that during a portion of the time allowed for answering, the attorney employed" to conduct the defense was compelled to be absent from town. But so far as all this tends to establish a legal excuse, it is completely and conclusively answered by the fact that no reason is given why, if more time was required, either on account of the complications suggested, or on account of