Consolidated Mortgage Co. v. Roberts

MUSSELL, J. On November 1, 1948, in this action for unlawful detainer, plaintiff obtained a default judgment by publication of summons and on the same date a writ of restitution was served on defendant, pursuant to which all of the stock in trade and fixtures were removed from defendant’s place of business at Laguna Beach.

Defendant moved to set aside the judgment under the provisions of section 473 of the Code of Civil Procedure on the grounds that the judgment was taken against him through mistake, inadvertence, surprise and excusable neglect; that the judgment was based upon inadequate publication of the summons and that the order for publication was not sufficiently supported by affidavit. The motion was heard upon affidavits, the pleadings and records in the action and a minute order was entered setting aside the default, granting the motion to strike and allowing the plaintiff 10 days to amend. Plaintiff appeals from the minute order.

Plaintiff and defendant entered into a written agreement whereby the premises involved in this matter were leased to the defendant for a period of three years beginning October 1, 1943, with an option for two additional years at a rental of [897]$75 per month. The option was exercised, and in the fall of 1947, while defendant was in possession of the premises under the lease, he made inquiry of one J. C. McCormick, who was the secretary and treasurer of the plaintiff corporation, as to whether the .lease would be renewed and if so, the amount of the increase, if any, in the rental. After contacting the other officers of the corporation, Mr. McCormick informed the defendant that the corporation would renew the tenancy under the same terms and conditions as contained in the lease then in existence, with an increase in the rental of not more than $25 per month. The defendant then, in anticipation of a renewal of the lease, installed various improvements on the premises at a cost to him of approximately $1,000. Shortly thereafter, Mr. McCormick, with whom defendant had dealt, severed his connection with the company and in the first part of August, 1948, defendant was informed by the successor of Mr. McCormick that the tenancy would not be renewed and that the premises had been leased to other persons. The defendant then consulted his attorneys, who wrote to the attorney for the plaintiff corporation informing him of the agreement made with Mr. McCormick and the defendant’s reliance thereon. A cashier’s cheek in the sum of $75 was enclosed in the letter to be applied on account of the rental of said premises. Plaintiff’s attorney denied the existence of any agreement between defendant and McCormick and on September 29, 1948, advised the attorneys for the defendant that prompt action would be taken to institute an unlawful detainer action in the event the defendant did not vacate the premises by September 30, 1948.