Bishop v. Babcock

WOOD (Fred B.), J. This is an appeal by plaintiff from an order vacating a judgment against defendants and permitting them to file their answer and cross-complaint in the action.

On February 17, 1949, appellant commenced an action for an accounting and dissolution of a partnership and for $9,592.17 as advances made by him in excess of his partnership interest.

The complaint was served upon respondents Alfred Babcock and Ernest N. Milam on February 18 and upon Mary Babcock (wife of Alfred Babcock and mother of Milam) on March 5. On February 28, Alfred Babcock and Milam executed a stipulation for judgment in the amount prayed for in the complaint plus $30 as costs. On March 17, judgment was entered against all three respondents upon this stipulation and upon the default of respondent Mary Babcock.

On March 19, respondents filed notice of motion, under section 473 of the Code of Civil Procedure, to set aside the judgment upon the ground that it was taken through their mistake, inadvertence, surprise and excusable neglect, accompanied by their verified answer and cross-complaint and the affidavit of each. Counteraffidavits by appellant and by his attorney were filed March 25. Supplemental affidavits by Milam and by Mary Babcock were filed March 25 and 29. The motion was heard on March 25 and 29 and thereupon granted.

Sufficient support for the conclusion of the trial court that respondents have a meritorious defense is furnished by respondents’ affidavits and their verified answer, which denies material allegations of the complaint, and by the cross-complaint, which alleges receipt by appellant of partnership property in excess of his partnership interest and seeks an accounting thereof by him and dissolution of the partnership. (Beard [234]v. Beard, 16 Cal.2d 645, 649 [107 P.2d 385] ; Shively v. Kochman, 23 Cal.App.2d 420, 422 [73 P.2d 637].)

It appears that the stipulation for judgment was prepared by appellant’s attorney and explained by him to Alfred Babcock who, according to his affidavit, had little experience in business and legal matters, was not represented by independent legal counsel and was not properly advised of his rights upon entering into the stipulation.

From Milam’s affidavits it appears that when he signed the stipulation he was in a bewildered and confused state of mind and not in full possession of his faculties, as the result of several weeks’ steady consumption of large quantities of intoxicating liquor; that he had not consulted nor was he represented by independent counsel and did not understand the stipulation at the time of signing.