Buell v. Emerich

Belcher, C. C. This action was brought to recover the value of certain personal property, alleged to have been owned by the plaintiff, and to have been unlawfully converted by the defendant to his own use. The answer denied each and every allegation of the complaint. On the eighth day of July, 1889, the case was set for trial on [117]the fifteenth day of August following. On the last-named day the case was tried, neither the defendant nor his attorney being present in court, and judgment was given for the plaintiff. On the twenty-sixth day of the same month, the defendant served and filed notice of motion to set aside and vacate the judgment, on the grounds that the defendant was not present at the trial; that his absence was not caused by any fault or neglect on his part; that he had no notice that the ac'tion was set for trial upon the 15tlx of August; and that he was taken by surprise and greatly prejudiced by the trial and judgment. The motion was heard by the court upon affidavits, and granted on condition that defendant pay to plaintiff the full amount of his costs to date. The appeal is by the plaintiff from this order.

The motion was made under section 473 of the Code of Civil Procedure, which provides that the court may, “ upon such terms as may be just, relieve a party or his legal representative from a judgment, order, or other proceeding taken against him through his mistake, inadvertence, surprise, or excusable neglect.”

It is settled law that applications like that made here are addressed to the sound legal discretion of the trial court, and that orders granting such applications will not be reversed on appeal, unless it clearly appears that the court abused its discretion. In Roland v. Kreyenhagen, 18 Cal. 455, where a similar question was presented, the court said: “It would require a very clear case of abuse of discretion in the judge below to induce us to interfere with his action upon such applications.” And after quoting section 68 of the old Practice Act, which is substantially the same as section 473, supra, it is further said: “The power of the court should be freely and liberally exercised, under this and other sections of the act, to mold and direct its proceedings, so as to dispose of cases upon their substantial merits.” And in Howe v. Independence Co., 29 Cal. 75, it is said: “Orders of the [118]