Blackwood v. Cutting Packing Co.

Searls, C. The plaintiff brought an action against the defendant for an alleged balance due on a sale of some apricots.

The complaint was filed on the fifth day of January, 1884, and summons served on the eighth day of the same month and year. On the eighteenth day of February of that year a default was entered and a judgment rendered in favor of the plaintiff for the amount of his demand and costs. Upon that same day a notice of motion was served and filed to set aside the default and judgment, in these words: —

“ To the plaintiff, and A. A. Moore and George W. Reed, his attorneys. ,

“ You will please take notice that on Friday, the twenty-ninth day of February, 1884, at the hour of ten o’clock A. m., or as soon thereafter as counsel can be heard, at the court-room of this court, Department No. Two, in the court-house at the city of Oakland, Alameda County, California, we shall move said court for an order setting aside the judgment and default heretofore entered against said defendant, and granting said defendant leave to file an answer to the complaint in said action.

“ Said motion will be made and based upon the following grounds, to wit: —

“1. That said default was taken against said defendant before the time allowed by law for answering, and the extension in writing, by the stipulation of said plaintiff’s attorneys, had expired.

“ 2. On the ground of the mistake, inadvertence, and excusable neglect of defendant’s attorneys.

“ Said motion will be made upon the papers on file [463]herein, and upon the affidavits, copies of which are hereto attached and served herewith.

“Yours, etc.,

“ Chickering & Thomas,

“ Attorneys for Defendant.

“ Dated February 18, 1884.”

The affidavits of merit, made in support of the motion by one of the attorneys for defendant, and Mr. Cutting, the vice-president of the corporation sued in the action, are as follows:— '

“ State of California, City and County of San Franciso.