Morgan v. McDonald

Thornton, J. In this case issues were joined by complaint and answer. The cause was on the 15th of August, 1883, regularly called for trial. When so called, no one appeared for the defendant. The counsel for plaintiff proceeded with the trial, and introduced some documentary evidence, and called and examined the' plaintiff on his own behalf. The court on the day above named rendered judgment for the plaintiff, which judgment was entered on the same day.

Defendant soon afterward gave notice of motion to set aside the judgment aforesaid as one taken against him by surprise, inadvertence, and excusable neglect. The affidavit of defendant read at the hearing of the motion stated that he did not know the cause had ever been set for trial; that his attorney had never informed him of it.

The defendant also presented at the hearing an affidavit of merits in the following form: —

[33]“I have recently substituted James A. Way miré as my attorney, have stated the facts of my defense fully to him, and am advised by him that I have a good defense on the merits.”

Conceding that the showing was otherwise sufficient, the affidavit of merits was not. It was not,fin accordance with the rule laid down by this court in Bank in Nicker-son v. California Raisin Co., 61 Cal. 268. It was there held that the affidavit must show that the defendant has fully and fairly stated the facts of the case to his counsel. The statement in this case is, that defendant has stated the facts of his defense to his counsel. This was the statement in the case just above cited, where the affidavit'was held defective. The rule of court submitted on the hearing of the motion in this case presents the' essential requirements of the law in regard to an affidavit of merits. We would suggest that it be followed.

The court erred in setting aside the judgment. The affidavit of merits was insufficient. The court had no authority to waive a proper affidavit. The order must therefore be reversed.

Ordered accordingly.

McKee, J., and Shabpstein, J., concurred.