Tuttle v. Scott

HAYNES, C. Appeal from an order vacating a judgment entered upon default. The above-entitled action was brought in the superior court of Colusa county on October 3, 1895, to recover from the defendants the sum of sixteen hundred dollars on a promissory note. On October 21, 1895, upon petition of his creditors, Scott was adjudged an insolvent debtor. On October 26th, the plaintiff presented and proved his claim—consisting of said note—against the estate of said insolvent, and in February following received a dividend thereon of four hundred and thirty-nine dollars and seventy cents. Scott received hisj final discharge as an insolvent debtor on March 9, 1896. On July 10, 1896, the plaintiff in this action entered the default of both defendants and took judgment against both for the amount of said promissory note less the dividend above mentioned. Within six months thereafter, defendant Scott moved the court to set aside said judgment, as against himself, and for leave to answer, and in support thereof filed an affidavit excusing the default, and the usual statement, upon advice of counsel, that he had a good and substantial defense to said action upon the merits. The affidavit then proceeded to state the facts constituting his defense, viz., the said proceedings and discharge in insolvency, that plaintiff’s claim was provable under the Insolvent Act of 1895, and was proved therein, and dividends paid thereon to the plaintiff prior to the entry of said judgment.

[588]Appellant does not question, in his brief, the sufficiency of respondent’s excuse for not answering before his default was entered. That it was sufficient, see Douglass v. Todd, 96 Cal. 655; 31 Am. St. Rep. 247. As said by the learned counsel for appellant, in his reply brief, “the gist of the question before us is whether the affidavit shows a meritorious defense.”

It is not essential that the affidavit of merits should disclose the facts constituting the defense (Francis v. Cox, 33 Cal. 323), but, of course, where the facts claimed to constitute the defense are stated, and it appears therefrom that the defense sought to be made is technical, or would not, if fully pleaded, constitute a defense to the action upon the merits, the affidavit is insufficient.

Appellant concedes that, if respondent had pleaded his discharge before the default and judgment were entered, it would have been good as a plea in bar, but nevertheless contends that it is merely a technical defense.

This contention cannot be sustained. A discharge in bankruptcy or insolvency, like payment or release, is a plea in bar which always goes “to the merits or grounds of the action.” The defense is one clearly recognized by the statute, and, when properly interposed, is effectual and conclusive.