Fulweiler v. Hog's Back Consolidated Mining Co.

Hayne, C. This is an appeal by defendant from orders refusing to set aside a default. The defendant’s first motion to set aside the default was denied. Leave was subsequently granted to renew the motion, and the motion was renewed upon additional affidavits, but was again denied. There was made, also, a motion to change the place of trial, but the counsel for the appellant states in his brief that this motion was abandoned; and the appeal is taken only from the orders refusing to set aside the default.

We think that the default should have been set aside.

The action was commenced at Auburn, in the county of Placer, where the plaintiff’s attorney resided. On January 7, 1889, service was made in Placer County upon the president of the defendant, which had its principal place of business in El Dorado County, where ils officers resided. Within three days after service the defendant retained the firm of Blanchard & Swisler, who had their office in Placerville, El Dorado County, as its attorneys for the defense of the action. They prepared [127]a demurrer to the complaint, and moving papers upon an application to change the venue, and on January 17th, which was the last day for the filing and service of said papers, Mr. Blanchard went to Auburn for the purpose of serving and filing them, “and arranging for the motions and proceedings in said cause.”

The first misfortune which befell the attorney was that he mistook the connection of the trains. He was informed at Placerville, “both upon inquiry and by the time-tables, etc., of the railroad company,” that a train left Sacramento at 1:05, p. m., and arrived at Auburn at 3:30, p. m., of the same day, which would have given him ample time to have attended to the filing and service of the papers; and knowing that he could get to Sacramento in time to connect with such a train, he proceeded to do so. Upon arriving there, however, he learned for the first.time that the train mentioned had been discontinued three days previously. He took the next train from Sacramento to Auburn, which ivas a freight train, and was due at the latter place at 6:15, p. m. From one of the way-stations he telegraphed to the plaintiff's attorney that he was on the freight train, and requested him to detain the clerk of the court. In compliance with this telegram the plaintiff's attorney sent word to the clerk, who promised “ to be around, either at his office or at his residence, so as to meet and accommodate Mr. Blanchard, up to seven o’clock, p. m., of that day.”