Betz v. Betz

MUSSELL, J. This action for divorce was commenced on August 21, 1953, and defendant was personally served with summons, together with a copy of the complaint, on August 29, 1953, in San Bernardino County. Defendant failed to answer the complaint and on August 11, 1954, at the request of plaintiff’s attorney, the default of defendant was entered by the clerk. On August 17, 1954, defendant filed a motion to set aside the default upon the ground that it was taken against him through mistake, inadvertence, surprise or excusable neglect. The motion was supported by the affidavit of defendant’s attorney and a copy of a verified answer was filed therewith.

It appears from said affidavit that at the time of the filing of the complaint and until on or about August 10, 1954, one Theodore Krumm was attorney for plaintiff; that for several months after the filing of the complaint the parties “negotiated a property settlement”; that Mr. Krumm and affiant agreed that defendant “would and did have an indefinite time in which to answer”; that on or about June 30, 1954, affiant received a letter from Mr. Krumm stating that unless an appearance was made in the action within 10 days thereafter, he would enter the default of the defendant; “that affiant talked with the defendant within said ten days; that said defendant at that time was in the county jail; . . . that defendant suggested a property settlement agreement; that within said ten-day period affiant suggested said property settlement agreement to said Mr. Krumm, who informed affiant that he would discuss the matter with plaintiff.

That affiant thereupon informed Mr. Krumm that the defendant was in the county road camp, and that it was difficult to see him; that it was affiant’s understanding from said conversation that no default would be entered against the defendant until plaintiff made up her mind concerning defendant’s said proposal, and that Mr. Krumm would notify affiant of said decision and would not enter a default without giving affiant further notice.

That affiant received no further notice from Mr. Krumm until August 11, 1954, when Mr. Krumm informed him that he had no further interest in the action and that Mr. Taylor P. Peterson was acting as attorney for plaintiff. Affiant thereupon called Mr. Peterson, stating to him the facts set forth therein; that affiant was prepared to file defendant’s answer on August 16, 1954, when he learned that defendant’s default had been entered by Mr. Peterson.

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