Thompson v. Goubert

BARNARD, P. J. This is an appeal from an order vacating a judgment following a motion made under section 473 of the Code of Civil Procedure.

A complaint for declaratory relief and damages was filed on September 13, 1954, alleging that the plaintiffs had leased 85 acres to the defendants; that the defendants, in farming said premises during 1953, had done or failed to do certain things “against the wishes” of the plaintiffs; that on October 27, 1953, written notice was given the defendants telling them that damage was claimed, that the plaintiffs would later contact them in anticipation of a settlement, and that they would thereafter be expected to do three things which were not specifically named in the lease; that during 1954 the defendants failed to do one of these things; and that a controversy had arisen in that the defendants claimed a right to do certain things, while the plaintiffs asserted that said things were contrary to the terms of the lease. In a second cause of action it was alleged that the plaintiffs had been damaged in the sum of $7,800.

The default of the defendants was entered by the clerk on September 24, 1954, and on October 11, 1954, a judgment was entered decreeing that the plaintiffs are entitled to cancel the lease and awarding them a judgment for $7,800. An execution was issued on October 20, 1954, and levied on the defendants’ bank account. The defendants first learned of the judgment and the levy on October 21, and on the same day consulted an attorney.

On October 22, 1954, the defendants filed a motion and notice of motion to set aside their default and to vacate the [155]judgment on the ground of mistake or excusable neglect, and also filed a proposed answer setting forth facts which, if true, would be a complete defense to the action. In support of the motion they filed an affidavit stating that they are farmers and unfamiliar with legal proceedings; that they had never before sued or been sued; that they asked the process server who served them what the “papers” were for, and he replied, “I don’t know”; that the summons was attached to the rear of the complaint and was never read in full, and its import was not realized by them until they consulted counsel; that they were told by others that they had to be ordered to appear in court on a date certain before they had to do anything in regard to the law suit; that because of these things they failed to answer the complaint in the time required; that they first learned of the default taken against them on October 21, and immediately employed attorneys to take proceedings to have the default and judgment vacated; and that they had been advised by their counsel and believed that they had a valid defense to the action upon its merits. In a supplemental affidavit filed on October 27, the defendants alleged that they had spent their childhood in a home in which the English language was not spoken; that by reason thereof, and in spite of certain schooling they had had, their ability to read and understand the English language was limited; that their business experience had been limited to farming, and neither of them had ever consulted or used an attorney prior to their learning of the levy of this execution; that at the time summons was served they were engaged in the peak of the harvest season, when a delay would have caused them irreparable damage; and that by reason of their inexperience and ignorance neither of them knew or realized that a judgment could be thus obtained against them.