Lewis v. Witcher

WHITE, P. J. This appeal was taken by defendant George Smith Mann, for himself alone, from an order granting motion to set aside a default judgment in favor of said appellant alone upon his cross-complaint, and to file respondents’ answer to cross-complaint, copy of which was attached to their notice of motion.

[422]The instant action is against appellant and defendant Witcher, both of whom were licensed real estate agents, for breach of contract and for money had and received. Defendants filed their joint answer on August 25, 1952. October 2, 1952, appellant for himself alone filed a substitution of attorneys and on December 26, 1952, he filed notice of motion for leave to file an amended answer, counterclaim and cross-complaint. The hearing on that motion was continued from the date first set, because of the absence from the city of respondents’ counsel. After his return, on or about January 15, 1953, he telephoned appellant’s counsel and told him he would stipulate that the amended answer, counterclaim and cross-complaint might be filed. In the same conversation counsel discussed the fact that respondents were in Siam and their agent was in New York, that “there was a good chance that plaintiffs would dismiss their complaint,” and appellant’s counsel “agreed that the matter of obtaining a dismissal be pursued, that no further proceedings would or need be taken in this matter until the question of the granting of a voluntary dismissal was determined.”

January 16, 1953, appellant’s motion was granted, notice of ruling on motion was mailed to respondents’ attorneys, and on January 23, 1953, appellant’s amended answer, counterclaim and cross-complaint were served by mail and filed. The counterclaim seeks to recover: (1) $4,484.13, real estate commission,- (2) $4,484.13 for services, work and labor performed; and (3) $5,000, the reasonable value of services performed. The cross-complaint seeks to recover: (1) $4,484.13, fee for services rendered in the sale of real estate; (2) $5,000, the reasonable value of services performed; and (3) $5,000 due under an exclusive listing agreement with appellant as a real estate broker. All allegations of the counterclaim must “be deemed controverted,” while allegations of the same matters in the cross-complaint must “be taken as true.” (Code Civ. Proc., §462.)

February 9, 1953, request for entry of respondents’ default for their failure to answer the cross-complaint was filed, and on February 18, 1953, respondents’ default was duly entered. Respondents’ counsel was not informed of appellant’s intention to request default, that he had filed such request, or that default had been entered.