DeMattie v. Henry

BARNARD, P. J. is This an action for damages arising out of an automobile accident. On March 27, 1947, summons was served on the defendant and by him turned over to his insurance carrier. On April 1, 1947, a representative of the insurance company, Mr. Owen, called on one of the attorneys for the plaintiff and obtained a written stipulation giving the defendant “to and including” April 26, 1947, in which to appear. No appearance was made within that time and on April 28, 1947, the default of the defendant was entered by the clerk. On the same day, a default judgment was entered against the defendant. The defendant then moved for an order setting aside the default judgment and permitting him to file his answer, which was submitted therewith. After a hearing on affidavits the motion was granted, and an order entered vacating and setting aside the default judgment and permitting the - defendant to file his answer. From that order the plaintiff has appealed.

The appellant contends that there was no showing of mistake, inadvertence, surprise or excusable neglect; that no reasonable excuse for the default was offered; and that the court abused its discretion in vacating the judgment on the showing made.

By written stipulation the respondent was given to and including April 26, in which to appear. That day was a Saturday and a default was requested and taken on Monday, the 28th, the first day on which this would have been possible. It appears from Owen’s affidavit that on April 1, he called on one of the attorneys for the appellant and stated to him that he was prepared to discuss the possibility of a settlement or, if the attorney preferred, that the summons and complaint would be referred immediately to counsel; that this attorney informed him that he was desirous of exploring the possibility of a settlement but was not then prepared to discuss its terms, because of the absence of his associate counsel, and because he did not then know [17]the amounts of the special damage; that affiant then asked for an extension of time in which to appear, so that the possibility of settlement could be thoroughly explored; that the attorney agreed to this and the stipulation was prepared giving them to and including April 26, in which to appear; that affiant again called on this attorney (on April 6) and discussed a settlement but was informed that the items of special damage were still undetermined; that affiant called on this attorney again (on April 16), at which time the attorney submitted a proposal of settlement; that affiant advised the attorney that this would be promptly submitted to his superiors; that affiant then stated that the time to appear provided in the stipulation was about to expire and the attorney replied "That will be all right”; that affiant promptly submitted the attorney’s proposition to his superiors, but before he received a reply thereto the default judgment was entered; and that affiant then called on these attorneys and asked them to set aside the default, which they refused to do.