Williams v. Bronston

WOOD, P. J. In this action on a promissory note, defendant appeals from the order denying defendant’s motion “to set aside a default judgment.”

The summons and complaint were served on defendant personally on March 5, 1960, in Los Angeles County. On [814]March 16, 1960, plaintiff’s request for entry of default was filed. Judgment by default by clerk was filed and entered on March 21, 1960.

On March 29, 1960, defendant filed a document entitled, “Motion,” which stated that defendant “moves the court that the default judgment ... be set aside and vacated,” and that the “motion is made upon the ground of provisions of Section 473 of the Civil Code of Procedure.”

Also on March 29, 1960, a “notice of Motion” was filed, which stated that defendant would make a motion on April 8, 1960, “that the default judgment heretofore entered by plaintiff be set aside and vacated.” That notice also stated that the motion would be made upon the grounds that the judgment was entered through the mistake, inadvertence, and excusable negligence of counsel for defendant, and upon the records “and demurrer concurrently filed herein.”

The demurrer, which was so filed, recited that it was made upon the ground that the complaint does not state facts sufficient to constitute a cause of action.

Also on March 29, 1960, the attorney for defendant filed an “Affidavit of Merit,” which stated that he is an attorney at law and the attorney for defendant; that he (affiant) researched the applicable law and facts in the said case and he believes that the complaint does not state facts sufficient to constitute a cause of action; that the affidavit is executed in connection with a motion to set aside the default entered on March 17, 1960, through excusable neglect and inadvertence of affiant.

Also on March 29, 1960, the attorney for defendant filed his affidavit “In Support of Motion to Set Aside Default.” That affidavit stated, in substance, as follows: He is an attorney at law licensed to practice in California. Service of summons and complaint was made on defendant on Saturday, March 5, 1960, and those papers were not given to affiant by defendant until Monday, March 7,1960. Affiant researched the applicable law and determined that the complaint did not state facts sufficient to constitute a cause of action. On March 7 affiant was preparing to go to New York where he was committed to several conferences involving business of other clients. He departed for New York on March 9, intending to return on March 12 and in any event in time to appear by demurrer. Upon arriving in New York many complications followed the matters in which he was engaged and it was impossible for him to return to Los Angeles until March 19. On March 21