Garner v. Erlanger

Belcher, C. C. This is an appeal from an order refusing to set aside a judgment entered against the defendant by default, in the county of Tulare. The motion was made, under section 473 of the Code of Civil Procedure, upon the ground of mistake, inadvertence, surprise, and excusable neglect. The action was upon a promissory note for $450, dated “Kingsburgh, February 13, 1888,” and payable at Kingsburgh one year after date, with interest. Kingsburgh is in Fresno County, and the summons and copy of the complaint were served on defendant in the county of Tulare on the twenty-eighth [61]day of February, 1889. The judgment was entered on. the 18th of March, 1889.

It appears from the affidavit of defendant, filed in support of his motion, that the note had been left with the First National Bank of Fresno, as collateral security for the payment of another note, made by the plaintiff to one Smith, and that defendant had been informed by the president of the bank that, unless the other note was paid on or before the thirteenth day of February, 1889, suit would be commenced on his note. The affidavit then proceeds to state “that, for the reason that said note was made payable at the county of Fresno, this affiant believed, and never entertained any doubt but what, if suit were brought upon said note, it would be brought in said county of Fresno, and at the time he was served with the so-called ‘summons’ and so-called ‘complaint,’ copies of which are hereto attached, he supposed, as a matter of course, that such suit had been commenced and brought in the superior court of said county of Fresno, and that he therefore had thirty days within which to file his pleading to said complaint;

. . . . that, at the time the so-called ‘summons’ in said action was served upon this affiant [he thinking, of course], he had been sued in the superior court of the county of Fresno, did not notice or think of looking at the title or name of the particular court in which such action was brought, and did not notice that' the word ‘Tulare’ was written where he supposed the word ‘Fresno’ would be, in the name or title of the court in which said action was brought, and remarked to his attorney that he would have thirty days within which to answer said complaint; that thereafter he handed said papers, copies of which are hereto attached, to his said attorney, and instructed him to attend to the matter, and prepare the necessary pleading; that his said attorney, after inspecting the said papers, informed this affiant that such suit had been brought in the county of