Pearson v. Drobaz Fishing Co.
Synopsis
Vacation of Judgment—Excusable Neglect—Absence fbom Tbial—Insufficient Counteb-affidayiT—Abuse of Discretion.—Where acase was placed upon the calendar for trial shortly after issue joined, and stood number seven on the calendar upon the day on which it was set, and when the calendar was called on the morning of the day set for the trial thereof, the defendants’ at- , toriiey, thinking the case would not be reached for trial until the next day, and having business in another court, was not present, but he had some one answer “ready” to the call of the case, and the six preceding cases were at once continued or otherwise disposed of, and thereupon in the absence of the defendants and their attorney, the plaintiff was called as a witness and the case was thereupon submitted and judgment given in favor of the plaintiff, and the attorney for the defendants, upon being informed of the trial and judgment about eleven o’clock of the same day, immediately called upon the plaintiff’s attorney for a stipulation setting aside the judgment, upon a refusal of which he at once made an affidavit setting out the facts to show that the judgment was taken through the defendants’ mistake, inadvertence, and surprise, and an order was made on the afternoon of the same day requiring the plaintiff to show cause why the judgment should not be set aside, an affidavit by the plaintiff filed two days thereafter stating that his witnesses had gone and he did not know their whereabouts, is not a sufficient answer to the motion, and the refusal of the court to set aside the judgment was an abuse of its discretion.
Id. — Tbial upon Merits to be Favoeed— Condition—Application of Judgment.—Applications for the setting aside of judgments procured without a trial of the case by the adverse party, are addressed to the sound legal discretion of the court, and should be disposed of by it as substantial justice may require, and this result will be best attained by a trial upon the merits, and neither of the parties should be deprived of such a trial, except when guilty of inexcusable negligence, and doubts should be resolved in favor of the application, though its allowance should be upon terms and conditions imposed upon the party in default, as the circumslances may warrant.
The Court. The plaintiff commenced this action in the ■ superior court of the city and county of San Francisco, to recover the sum of $382.25 alleged to be due for work, labor, and services rendered and performed by him for defendants at their special instance and request. The complaint was filed July 15, 1891, and on the 25th of the same month the defendants answered thereto denying that the defendants, or any of them, were indebted to the plaintiff in the sum named, or in any other sum, for work, labor, and services, or otherwise, or that the said sum, or any portion thereof, was due and payable from defendants, or either of them, to the plaintiff. Shortly after the answer was filed the case was placed on the trial calendar of Department Six of the court, and on October 6, 1891, it stood for trial as number 7 on that calendar. When the calendar was [427]called on the morning of the last-named day, the defendants’ attorney, thinking the case would not be reached for trial until the next day and having business in another court, wasn not present, but he had some one answer for him to the call of the case “ready.” The six cases preceding this one were at once continued or otherwise disposed of, and thereupon in the absence of the defendants and their attorney, the plaintiff was called and examined as a witness in his own behalf, and the case was then submitted and judgment given in his favor for the amount demanded in the complaint. The attorney for defendants was informed of the trial and judgment about eleven o’clock of the same day, and at about the same hour called upon the attorney for the plaintiff and requested him to stipulate that the judgment should be set aside, which request was refused, and thereupon he at once made an affidavit setting out facts to show that the judgment was taken against defendants through their mistake, inadvertence, and surprise. On this affidavit an order was made by the court on the afternoon of the day the judgment was rendered, requiring the plaintiff to show cause on the ninth day of the same month why the judgment should not be set aside and the defendants allowed to present evidence in support of the issues raised by their answer. At the time appointed the motion to set aside the judgment came on regularly for hearing before the court, and was submitted upon affidavits filed by the respective parties and the judgment roll in the case. The plaintiff in his affidavit stated that some of his witnesses were sea-faring men and had left the city of San Francisco, and that their whereabouts was unknown, and that to the best of his belief he would not be able to find them again. Thereafter, on December 1, 1891, the court denied the motion, and the defendants excepted to the ruling. From the judgment entered and the order denying their motion the defendants appeal.
More from California Supreme Court
- People v. Wende (1979)
- People v. Watson (1956)
- People v. Superior Court (Romero) (1996)
- People v. Kelly (2006)
- Auto Equity Sales, Inc. v. Superior Court (1962)
- Aguilar v. Atlantic Richfield Co. (2001)
- People v. Lewis (2021)
- In Re Estrada (1965)
- Denham v. Superior Court (1970)
- People v. Marsden (1970)