William Wolff & Co. v. Canadian Pacific Railway
Before: Vanclief
Synopsis
Judgment by Default — Application to Set Aside — Amendment— Diligence. — An application to set aside a default judgment which expressly refers to and makes “ all the papers and proceedings on file or of record ” a part of the moving papers, and which is substantially an amendment of a former application which was on file at the hearing of the motion, by the addition of further affidavits and a proposed answer, will be so regarded, for the purpose of determining the question of diligence in the application.
Id. — Discretion of Trial Court — Doubt Resolved in Favor of Application. — The matter of opening defaults is within the discretion of the trial court, and where the circumstances are such as to lead the court to hesitate, the doubt will he resolved in favor of the application, so as to secure a trial and judgment upon the merits.
Id. — “Reasonable Time”—Assent to Delay — Six Months’ Limitation.—The question as to what is a “reasonable time,” short of the extreme limit of six mouths allowed by section 473 of the Code of Civil Procedure within which application may he made for relief “from a judgment, order, or other proceeding,” is for the court to decide, upon all the circumstances of the case; hut where a delay has been assented to by the other party, or does not appear to have been injurious to his rights, the six months’ limitation should be considered as the only limit of reasonable time.
Id. —Limit of Application — Hearing not Limited. — The six months’ limitation prescribed by section 473 of the Code of Civil Procedure is a limitation of the time within which the application must he made, and not of the time within which it must be heard.
Id. — Dismissal of First Application by Moving Party — New Application — Construction of Code. — The dismissal of the first application without prejudice, at the request of the moving party, was not a refusal by the court, in whole or in part, to grant the application, within the meaning of section 182 of the Code of Civil Procedure, so as to bar the presenting of the new or amended application.
Id. — Condition of Opening Default — Allowance of Attorney’s Fee
— Refusal to Accept Tender — Right of Appeal — Setting aside Allowance. — The refusal of the plaintiff s attorneys to accept a tender of an attorney’s fee, ordered by the court to be paid to the plaintiff by the moving party as a condition of opening the default, upon the ground that its acceptance might prejudice their right to appeal from the order opening the default, does not warrant the court in vacating that portion of the order requiring the payment of the fee.
Id. —Waiver of Right of Appeal — Acceptance of Money. —It seems, that the acceptance by the plaintiff of the amount of the attorney’s fee, imposed as a condition of opening the default of the defendant, would be a waiver of the plaintiff’s right to appeal from the order.
Vanclief, C. — The appellant is a California corporation, and, as such, on June 30, 1888, brought an action in the superior court of the city and county of San Francisco against the respondent, a foreign corporation, to recover damages for an alleged failure safely to carry and’ deliver certain goods, the property of appellant, from New York to San Francisco.
The summons was served upon Moses M. Stern, who is described in the affidavit of service as the business agent of the defendant. Judgment by default was rendered July 16, 1888. On the following day the defendant’s attorney obtained an order staying execution pending a motion to set aside the default. On July 19, 1888, the attorney for defendant gave notice of appearance in the action, and also of a motion to set aside the default and judgment on the grounds of mistake and inadvertence; and upon the following day the'paperg-served upon the plaintiff were filed.
The hearing of the motion was postponed, from time to time, by consent of both parties, and on November 23, 1888, the motion was stricken from the motion calendar by the court, in the absence of both parties, and on motion of defendant was restored to the calendar on January 8, 1889. On January 12, 1889, the defendant, discovering that the first application was defective, filed a new application upon additional affidavits, accompanied by a proposed answer to the complaint. This application purported to be a present application to the court “to vacate and set aside the judgment heretofore entered in said action against defendant, to relieve said defendant from the default judgment and other proceedings taken against defendant in said action after the [335]institution thereof, and for such other and further relief as may be proper, upon the ground that such proceedings, said default, and such judgment were made in said action because of the mistake, inadvertence, surprise, and excusable neglect of said defendant; upon the further ground that such judgment was improvidently rendered; and upon the further ground that said defendant has a good and substantial defense to said action on its merits, and that the granting of said application would be in furtherance of justice.” It also contained a notice, by the attorneys for defendant, “ that we shall move to have the application aforesaid heard, and said relief applied for granted, at the court-room of said court and department, in the New City Hall, in said city and county, on Friday, the eighteenth day of January, 1889, at ten o’clock, A. M., or as soon thereafter as counsel can be heard. Said motion will be based upon all the papers and proceedings on file or of record in the above-entitled action, and upon the affidavits and the proposed answer of defendant herewith served and filed.”
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