Douglass v. Todd

Haynes, C.— Appeal from an order vacating a judgment entered against defendant upon default.

The affidavit of defendant stated facts showing a sufficient defense to plaintiff’s action, at least as to the first cause of action.

Plaintiff filed a counter-affidavit, which it is contended rebuts the facts stated in defendant’s affidavit.

It is well settled that a default will not be set aside unless a sufficient affidavit of merits is filed; but proper practice does not permit the facts stated in defendant’s affidavit, which constitute his defense to the action, to be rebutted by counter-affidavits. The court will not try the merits of the case upon affidavits, but will hear counter-affidavits as to the excuse for permitting the default. (Francis v. Cox, 33 Cal. 323; Gracier v. Weir, 45 Cal. 53.)

Defendant’s affidavit, after fully stating the facts constituting his defense to the action, alleged, as the reason why he permitted a default to be taken against him, that as soon as he was served with the summons he consulted an attorney, whose name he gives, and explained to him the facts stated in his affidavit, and was advised by said [658]attorney that he had no defense, and believing and relying upon said advice, did not answer the complaint.

Appellant does not deny in his counter-affidavit that respondent received that advice, but denies that he made default for that reason, and alleges that it was because he supposed himself to be “ execution-proof.” It is not probable that if that was the reason why he permitted a default to be taken that he would have consulted an attorney in regard to a defense to the action; but having done so, and having been advised that he had no defense, it is quite natural that he should assert to plaintiff that he “ could hang his judgment on the wall,” — that he could n’t collect it.

Appellant contends, however, that the erroneous advice of counsel as to the law of the case upon which the defendant relied, and because of which he supposed the default to be taken, is not a sufficient ground for setting it aside.

We are not referred by counsel to any case where this precise question has been decided by this court. Appellant cites cases where it is held that the negligence of the attorney will not avail to set aside a default, and contends that therefore his ignorance will not avail.