O'Connor v. Ellmaker

McFarland, J. This is an appeal from an order of the superior court denying a motion of plaintiff to vacate and set aside a judgment rendered in favor of defendants, on the ground that said judgment was taken against defendants through their mistake, inadvertence, surprise, and excusable neglect.

It appears from the certificate of the judge of the superior court that the trial calendar of said court was regularly called on August 30, 1886; that the case at bar was on said calendar, and being regularly called, was answered “ready”; that by order of the court then made, five cases were set for each day; that the case at bar was regularly reached on September 16, 1882, and that, [453]neither plaintiff nor her attorney being present, the trial was continued to September 20, 1886; and that, on said last-named day, plaintiff and her attorney being again absent, the case was taken up and heard, and judgment rendered for defendants. The excuse set forth in the affidavit of appellant’s attorney is, that he did not think that the case would be reached so soon; that he was deceived by mistaking the date of a certain number of the San Francisco Law Journal, in which the calendars of the various courts of the city are published daihr, and that he did not think that the case at bar would be heard on the said day when judgment was rendered. Under these circumstances we cannot say that the court below abused its discretion in denying the motion. The facts are essentially different from those of Dodge v. Ridenour, 62 Cal. 263, and the other cases cited by appellant.

Order affirmed.

Thornton, J., and Sharpstein, J., concurred.