Whipley v. Flower (1856) · DecisionDepot

Whipley v. Flower

Name: California Superior Court Tentative Rulings
Creator: DecisionDepot
License: https://creativecommons.org/licenses/by-nc/4.0/

California Supreme Court Sep 22, 1856 No. No. 987Published

Before: Murray, Terry

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Holding. The court held that the defendant failed to demonstrate surprise or excusable neglect to justify setting aside a default judgment, as the defendant exhibited gross neglect in failing to timely file an answer.

Issues

Whether the defendant established sufficient grounds of surprise or excusable neglect to set aside a default judgment.

Disposition. reversed

Quotations verified verbatim against the opinion

“the affidavit, on which the motion to set aside the judgment was based, so 'far from showing surprise or excusable neglect, shows a gross neglect on the part of the defendant.”

Synopsis

APPEAL from Sixth Judicial District, Sacramento County.

MURRAY, C. J. — Service was had upon the defendant in San Francisco more than forty days before default and judgment in this case. There was daily communication between the two .places, so that the defendant had ample time to prepare for his defense. The affidavit, on which the motion to set aside the judgment was based, so 'far from showing surprise or excusable neglect, shows a gross neglect on the part of the defendant. He should have apprised his attorney of the time in which the answer should be filed, or the attorney ought to have obtained the information from the clerk’s office and not have waited until judgment was taken against him.

With the merits of the case we have nothing to do.

Order reversed.

I concur: Terry, J.

Whipley v. Flower

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