Burns v. Scooffy
Before: Searls
Synopsis
Setting Aside Default—Excusable Neglect—Necessary Absence of Attorney. —A default should be set aside upon the ground of excusable neglect, with leave to answer, where an affidavit of merits on behalf of the defendant showed a good defense to the action, and where it appeared upon the motion that the defendant and her attorney resided about six hundred miles from the county where the action was pending; that before the expiration of the time for answering, and while the attorney of the defendant was engaged in drawing her answer, he received a telegram to the effect that his brother had been shot and dangerously wounded, and that he at once went to his relief; that it was necessary for him to stay with his brother for several days, and that during that time his physical and mental condition was such, in consequence of the condition of his brother, that he was unable to complete the answer in' time, and that an extension of time was asked for and refused.
State School Land—Contest — Pleading—Answer—Demand — Approval of Application—Order of Reference. — In an action by an applicant for the purchase of state school land, to contest the applications of the defendants to purchase the same lands, and have them declared invalid and of no effect, an answer by one of the defendants showing that his application was filed in the office of the surveyor-general upon a certain date, more than one year previous to the commencement of the action, but failing to aver that within six months thereafter be demanded an approval of his application, or made demand of an order of reference, or that a reference to a court had been made as provided by section 3198 of the Political Code, is insufficient and fatally defective. The application to purchase became void at the expiration of six months unless the action indicated was taken, and it was necessary to aver it to have been so taken.
Id.—Striking Answer from Files for Insufficiency — Amendment—Inadvertence of Attorney.—The trial court erred in ordering such answer to he stricken from the files on the ground of its insufficiency, ’and in refusing to allow the defendant to file an amendment thereto to cure the defects therein, it appearing from the affidavits in support of the motion that the omission of the necessary allegations from the answer were in all probability an oversight on the part of the attorney who drew the pleading.
Id.—Striking Out Pleading Susceptible of Amendment.—To strike out a pleading, which is susceptible of being amended by a statement of facts known to exist, and which constitute a cause of action or defense to an action, is a harsh proceeding, and should only be resorted to in extreme cases.
Id. — Liberality in Allowing Amendments.—Great liberality should be shown by a trial court in permitting, where it cm be done without working great delay, such amendments to pleadings as facilitate the production of all the facts hearing upon the questions involved in the action.
Searls, This is an appeal by Mansfield Lovell and Lallah S. Highton, two of the defendants in the above-entitled cause, from a judgment in favor of the plaintiff. John Burns instituted the action against Ada M. Scoofiy, Lallah S. High-ton, Edith Cook, Mansfield Lovell, Robert T. Cottingham, Nelson R. Doolittle, and Harry J. Gray, to establish his right to purchase from the state of California the north half of section 35 (school land), in township 14 north, range 1 east, Humboldt meridian, and to have like applications of the defendants and each of them, to purchase from said state, declared invalid and of no effect. The time for answer by the defendant, Lallah S. Highton, expired January 19,1891, and no answer having been filed, her default was entered January 20, 1891. A motion to set aside the default with leave to answer was refused by the court, and judgment entered in favor of plaintiff. I am of opinion the showing on the motion to set aside the default made out a clear case of excusable neglect.
Defendant and her attorney resided in San Francisco, some six hundred miles from Crescent City, in the county of Del Norte, where the action was pending, and several days aie required to make the journey between the two points. On the thirteenth day of January, and while the attorney of defendant-was engaged in drawing her answer, he received a telegram to the effect that his brother had been shot and dangerously wounded. He at once went to his relief. A surgical operation was rendered necessary, and the brother being among strangers, the attorney staid at his bedside for seve'ral days, during which time, as he avers under oath, his physical and menial condition was such, in consequence of the condition of his brother, that lie was unable to complete the answer in time. He did, however, send a request for a short extension of time to answer, which was refused, and which refusal he learned when too late to answer.
If there are in the profession men who upon learning that a [275]brother has been dangerously wounded by a vrould-be assassin, and who upon being called upon to go to his relief “with a carriage and a doctor,” fail to do so, and subordinate the duties of humanity and the ties of kinship to the urgency of professional engagements, they are probably few in number, and it is to be hoped their number will decrease.
If the case was not one of commeudable neglect, it was at least a case of excusable neglect.
The affidavit of Henry E. Highton on behalf of defendant shows a state of facts which, if established, constitutes a valid cause of action and defense on the part of the defendant High-ton as against the plaintiff.
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