Mowry v. Nunez

McFARLAND, J. This is an appeal by plaintiff from an order made December 1, 1890, setting aside the default of defendant, and vacating a judgment theretofore entered against him. The motion of respondent to open the default was upon the grounds “that said judgment and the said default were taken against him by and through the mistake, inadvertence, and excusable neglect of said Nunez.” Afterward, at the suggestion of the court, another ground was added, viz., irregularity of process, consisting of the issuance of the second summons upon an amended complaint without an order of court allowing it, and the court based its order vacating the judgment upon this latter ground. But the affidavits showing mistake, excusable neglect, etc., were such that the court should have opened the default on that ground, and therefore it is not necessary to discuss the question about the invalidity of the process. This is a case where, in an action of ejectment, default and judgment were taken and rendered against a tenant without the knowledge of his landlord, and in such a case an order vacating a judgment will rarely be disturbed. The order appealed from is affirmed.

We concur: De Haven, J.; Fitzgerald, J.