Brackett v. Banegas

Harrison, J. The respondent filed his complaint against Manuel Banegas, the appellant, and J. W. Lucas, for the fore[625]closure of a mortgage executed to him by said Manuel, and upon the default of Lucas, and the answer of Banegas, the cause was tried and judgment rendered in favor of the respondent March 9, 1891. Upon this judgment an order of sale was issued March 14th, and the mortgaged premises sold to the plaintiff for the amount of the judgment April 6, 1891, and the order of sale and judgment returned satisfied. On the 13th of April, 1892, upon the ex parte application of the plaintiff in said action, respondent herein, the court "made an order “that all subsequent proceedings herein after the service of summons and the return thereof upon defendants, Manuel Banegas and J. M. Lucas, be and the same are set aside, and said decree opened without prejudice to the rights of the plaintiff in said decree of foreclosure, and that plaintiff be and he is hereby allowed to file an amended and supplemental complaint herein.” Thereafter the plaintiff filed an amended complaint, making Nievas Banegas a party defendant, and a summons was issued thereon and served upon Manuel and Nievas. These two defendants thereupon made a motion to set aside the aforesaid order and the summons issued therein, and to strike from the files the said amended complaint upon the grounds that the court had no jurisdiction to make the said order, and that the same had been made without any notice to the defendants or either of them. The court denied the motion, and the said defendants have appealed from the original order, and also from the order refusing to vacate the same.

Section 473 of the Code of Civil Procedure provides that the court may relieve a party “from a judgment, order or other proceeding taken against him through his mistake, inadvertence, surprise, or excusable neglect, provided that application therefor be made within a reasonable time, but in no case exceeding six months after such judgment, order, or proceeding was taken.” Under the provisions of a statute in New York similar to this, it is held that a party in whose favor judgment has been rendered is entitled to relief the same as though the judgment had been rendered against him; that the statute is intended to be remedial, and should receive a liberal interpretation. (Montgomery v. Ellis, 6 How. Pr. 326. See also Code Civ. Proc., sec. 4; Downing v. Still, 43 Mo. 309.)

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