Fuqua v. Rose

SHINN, P. J. A. Brigham Rose and Zelletta M. Rose, husband and wife, appeal from a default judgment against them in the sum of $38,330.42. Their default was taken after their failure to plead to process duly served upon them. Their motion to vacate the default was heard upon affidavits and was denied without prejudice on February 11,1959; February 17th, upon evidence taken, judgment was given in favor of plaintiffs as above stated. February 19th, defendants Rose gave another notice of motion to vacate the default and filed additional affidavits. Apparently they were unaware of the fact that judgment had already been entered against them. The second motion also was denied.

The complaint alleged that Mr. and Mrs. Rose and four fictitiously named defendants agreed to pay Mary Allen Fuqua certain sums of money and thereafter $200 per month as long as she should live, with the provision that if defendants should at any time be in arrears for 30 days in making any monthly payment, at the option of plaintiffs or their attorney, $54,-799.20 less the sums of all monthly payments that had been made, would become immediately due and payable. It was alleged that defendants had paid $22,133.54 of which $18,000 consisted of 90 monthly payments and that no payment had been made since June 13, 1958; there remained due to plaintiffs $36,799.20 for which judgment plus interest and costs was prayed.

The ground of each motion was stated in an affidavit of Rose. In his first affidavit he averred that in a conversation with Herb Wiener, one of plaintiffs’ attorneys, he stated that he had come into Los Angeles “for the purpose of communicating with the persons actually and directly involved in the matter of providing that the $200 per month payments to the plaintiff, Mary Allen Fuqua be made, and that he, therefore, wanted time in which to plead to this action, and if necessary, to bring in the parties directly involved. Said attorney specifically and unequivocally advised affiant that he would not require affiant or the codefendant to plead until due and proper notice was served demanding such pleading after such conversation.” It was averred that affiant believed and relied upon such promise. Herb Wiener filed an affidavit in which he stated that Rose telephoned him on December 30, [592195]8, stating that he had come up to Los Angeles from San Diego to arrange to have a Mr. Somers, to whom the Roses had sold a hotel, pay directly to the plaintiffs the accrued delinquent monthly payments; that Somers’ property had been attached and his monthly contract payments had been tied up. Rose asked affiant if he were interested in making a settlement and reinstating the $200 a month monthly payments; deponent stated he would be agreeable to listen to any proposed offer of settlement and thereafter to take it up with his clients. Defendant Rose further stated that an answer was due in the within action within a few days and deponent replied that he knew. Defendant Rose then stated that he would contact Mr. Somers the following day, Wednesday, and would call deponent on Wednesday, or immediately after the first of the new year. Rose did not request an extension of time; if an extension of time had been requested it would have been denied. Wiener entered the defaults January 6,1959 and did not hear from Rose again until January 27, 1959.