Lybecker v. Murray

Thornton, J.: This was an action brought in the Superior Court for the County of Sutter, to recover damages for the conversion of a quantity of wool.

When the cause came on to be heard the plaintiffs moved the Court to strike out the paper on file purporting to be the answer of the defendant, which motion was granted. The Court then ordered judgment in favor of plaintiffs for the amount demanded in the complaint.

The motion above mentioned was made and granted on the 10th day of April, 1880. No one appeared to oppose this motion, although due notice of it had been given as required by law.

On the 22d day of the same month, the defendant moved the Court, after due notice, to set aside the default and judgment against him on the ground that the same was taken against him through his inadvertence, surprise, and excusable neglect. This motion was made on the papers on file in the cause, on the answer stricken out, and on an affidavit of defendant’s attorney. The motion was denied. The defendant prosecuted this appeal from the judgment and from the order refusing to set it aside.

It appears from the bill of exceptions that the complaint was served on the defendant on the 28th day of January, 1880, in the County of Sacramento, that thereafter defendant’s attorney prepared an answer and forwarded it to the Clerk of the Superior Court for Sutter County, with a request that the Clerk would file it, and serve a copy of it on the attorney for the plaintiffs, that the answer was received by the Clerk after 6 o’clock on the evening of the 8th day of March, 1880, and on the same evening he filed it, that on the next day the Clerk served the answer on plaintiff’s attorney by leaving a copy thereof at his residence in Tuba City, with his minor daughter, aged ten years, the attorney not being [188]personally found, and having no office in the County of Sutter; that this was the only service made or attempted to be made, and plaintiffs’ attorney did not receive or know of the. existence of the answer until the next day, and at no time had the attorney for plaintiffs been absent from his office or residence so that service of papers could not have been made upon him in any of the modes provided by law. It appears from the bill of exceptions that the office of the plaintiffs’ attorney was at No. 58 D Street, Marysville.

The answer which was' stricken out appears in the bill of exceptions, and by it the defendant denies that at any time the plaintiffs or either of them were the owners or entitled to the possession of the wool described in the complaint, or that the same was of any greater value than three hundred dollars, and also denies that he unlawfully or against the will of plaintiffs, ever converted or disposed of the said wool or of any part thereof, to the damage of the plaintiffs or of either of them, in any sum whatever.