Kenney v. Kelleher

Per Curiam. Leave to renew a motion may be given after the original motion is denied, and when given may be acted upon. In this case there must necessarily have been an application to the court for leave to renew the motion, and the application must have been granted. This is evident from the fact that the court entertained the motion for an order to show cause, and afterward, when the principal motion came on to be heard, entertained and granted it against the objections of the opposite party. (Bowers v. Cherokee Bob, 46 Cal. 286.)

It is insisted that leave to renew can only be granted by the court, and not by a judge in chambers. But a judge of the Superior Court may, at chambers, grant all orders which are usually granted upon ex parte application. (Code Civ. Proc. § 166.) Orders to show cause are made ex parte. The final order was made by the court. It was said in Ford v. Doyle, 44 Cal. 635, that the doctrine of res adjudicata, in its strict sense, does not apply to motions made in the course of practice, and the court may, upon a proper showing, allow a renewal of a motion once decided. It is added that this leave will rarely be granted unless it appears that a new state of facts has arisen since the former hearing, or that the then existing facts were not presented by reason of surprise or excusable neglect.

But this is not a determination that leave may never be granted upon the same facts more fully stated. The granting or refusing of leave to renew the motion is within the legal discretion of the court, which we ought not to interfere with except in case of abuse.

Ho point is made by appellants as to the sufficiency of the affidavit of the defendant as an “affidavit of merits.”

[445]Upon the affidavits and proffered answer of the applicant we cannot say the court below erred in granting the motion to set aside the default judgment.

The portions of the testimony objected to were not entirely irrelevant.

Order appealed from affirmed.