Wright v. Snyder

BARNARD, P. J. A complaint was filed in this action on May 19, 1933. A demurrer, filed on June 12, 1933, was sustained. On July 20, 1933, an amended complaint was filed, service on July 19th being admitted by Edward West as attorney for defendant Peter Nicholas Snyder. The action was later dismissed as to the other defendants. The default of the defendant Peter Nicholas Snyder was entered on September 30, 1933, and on October 6, 1933, he filed a notice of motion to set aside this default, based upon the provisions of section 473 of the Code of Civil Procedure. Prom the order granting this motion the plaintiff has appealed.

It is well settled in this state that the setting aside of a default is a matter largely within the discretion of the trial court and that such an order will not be reversed unless [496]it clearly appears that there has been an abuse of this discretion. In Nicoll v. Weldon, 130 Cal. 666 [63 Pac. 63, 64], the general rules are thus summarized:

“The granting or denying a motion to set aside the default of a defendant is so largely a matter of discretion with the trial court that, unless it is clearly made to appear that there has been an abuse of this discretion, this court declines to set aside its order. Especially are we indisposed to review its action when it has set aside the default, and it does not appear that the plaintiff has sustained any prejudice thereby. This discretion of the court is best exercised when it tends to bring about a judgment upon the merits of the controversy between the parties. Section 473 of the Code of Civil Procedure is a remedial provision, and is to be liberally construed so as to dispose of cases upon their substantial merits, and to give to the party claiming in good faith to have a substantial defense to the action an opportunity to present it. (Buell v. Emerich, 85 Cal. 116 [24 Pac. 644] ; Harbaugh v. Honey Lake etc. Water Co., 109 Cal. 70 [41 Pac. 792]; Melde v. Reynolds, 129 Cal. 308 [61 Pac. 932].) It is for this reason that we more readily listen to an appeal from an order refusing to set aside a default, than where the motion has been granted, since in such case the defendant may be deprived of a substantial right, whereas it may be assumed, if nothing to the contrary is shown, that the plaintiff will be able at any time to establish his cause of action. If, for any reason, he will be unable to do so, that fact should be made to appear; but if he is merely subjected to delay or inconvenience by having the default set aside, he can be compensated therefor by the terms which the court will impose as the condition of granting the motion.”