Yancey v. National Benevolent Ass'n

HENSHAW, J. This is an appeal from the order of the superior court refusing to vacate a judgment rendered against defendant.

The grounds of the motion are that the judgment was given through the mistake and inadvertence and surprise of the defendant. The uncontradicted facts shown at the hearing were the following: The defendant is a foreign insurance company. The action was instituted by plaintiff against the defendant to recover upon one of its policies. It was commenced in the city and county of San Francisco. Defendant employed to represent it attorneys who were residents of the city and county of San Francisco. Thereafter plaintiff, by her motion, procured a change in the place of the trial of the action from the city and county of San Francisco to the county of Fresno. The cause was at issue, and upon October 2d it was, under the rules of the [677]court, set for trial upon October 27th following. The rule under which the cause was set has heretofore been considered by this court. It is as follows: “The trial calendar of either department will be called at such time as the judge of such department may appoint, and the cases thereon set for trial. The trial calendar shall consist of those cases in which an issue of fact has been joined before the day set for the calling of the same.” Defendant’s attorneys were at the time of the setting of the cause for trial in San Francisco, and had no actual notice of the fact. Upon October 3d defendant’s attorneys by mail served upon plaintiff’s attorney in Fresno notice of its motion for leave to amend its answer, and for the issuance of a commission to take testimony. Their motions were noticed for the twenty-eighth of October, the day following the date set for the trial of the action. At the same time they communicated with plaintiff’s attorney by mail, writing to him that they had noticed their motions for the twenty-eighth of October, and concluding: “We should also be pleased at that time to agree with you upon a date for the trial of the case, provided the date can be set far enough off to allow us to have the depositions taken, and to arrange with Mr. Getty for his presence.” To this plaintiff’s attorney made reply upon October 10th, acknowledging the receipt of the letter, refusing his consent “at this time” to the filing of the amendments, or to the taking of the proposed deposition, and concluding: “As the case has been ready for trial several months, I must refuse to consent to continue the trial thereof until you can take or attempt to take any depositions.” Upon the twenty-seventh of October, 1896, the day set for trial, one of defendant’s attorneys was in the city of Fresno. He called at the office of plaintiff’s attorney five times upon that day, and looked for him in other places, but was unable either to find him or to learn his whereabouts. The following day, upon going to attend the court at the hearing of his motions, he learned for the first time that the cause had been set for trial upon the day preceding, had been actually tried in his absence, and a judgment in favor of plaintiff rendered. His motion to vacate the judgment followed promptly, but was denied.