Gracier v. Weir (1872) · DecisionDepot

Gracier v. Weir

Name: California Superior Court Tentative Rulings
Creator: DecisionDepot
License: https://creativecommons.org/licenses/by-nc/4.0/

California Supreme Court Jul 1, 1872 No. No. 3,492Published

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Holding. The court held that it is improper practice for a respondent to file affidavits contradicting an appellant's allegation of merits when the appellant moves to be admitted to defend an action.

Issues

Whether a respondent may file affidavits to contradict an appellant's allegation of merits during a motion to defend an action.

Disposition. reversed

Quotations verified verbatim against the opinion

“This is not proper practice.”

“The order is reversed without costs, and the Court below directed to set aside the default, and permit the appellant to file an answer upon such terms as may be proper.”

Synopsis

Practice—Motion to Open Default.—Upon a motion by a party defendant to set aside a default, and to be admitted to defend the action, the plaintiff will not be permitted to file affidavits contradicting the allegations of merits contained in the affidavits of the moving party.

By the Court: Upon the motion of the appellant to be admitted to defend the action, the respondent was permitted to file affidavits contradicting the allegation of merits contained in the moving papers. This is not proper practice. The order is reversed without costs, and the Court below directed to set aside the default, and permit the appellant to file an answer upon such terms as may be proper.

Gracier v. Weir

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