Dew v. Pavese

THOMPSON (Raymond), J. pro tem.* The complaint herein was in several causes of action, including one on money due on promissory notes executed by the defendant P. J. Pavese.

The complaint was filed October 22, 1965, was served on October 28, and the parties agree that on November 4 defendant’s attorney was given 10 days from that date in which to answer. According to plaintiffs’ counsel’s declaration on or about November 15 defendant’s attorney was granted an additional five days by oral agreement so the answer should have been filed by November 19. However, by a hearsay statement in the declaration of defendant’s counsel, his secretary called plaintiffs’ attorney’s secretary about November 22, 1965, and was granted a further continuance. This is denied by declaration of plaintiffs’ counsel, again hearsay, asserting that his secretary refused to grant further continuance on the ground that she had no authority, the matter being for attorneys, not for secretaries. On November 26 default was entered and defendant’s attorney was immediately informed by telephone and in writing.

Plaintiffs’ attorney refused to set aside the default and advised defendant’s attorney to take necessary steps to have it set aside if he had grounds therefor. On January 31, 1966, a default hearing was had before Judge Carl B. Hilliard and a judgment was granted for plaintiffs against defendant on the cause of action on the notes in the amount of eleven thousand six hundred sixty-seven and 10/100 dollars ($11,667.10) plus five hundred dollars ($500) attorney’s fees. Defendant’s attorney was notified of the taking of this judgment. Judge Hilliard was fully advised of the circumstances.

On May 24, 1966 (five months and twenty-eight days after default entry), defendant filed a notice of motion to vacate the default and set aside the judgment, supported by a declaration of his attorney, Alan M. Mund. In addition to what we have already noted, this declaration refers to a change of secretarial personnel in defendant’s attorney’s office and the “concomitant confusion” together with the “untimely illness of declarant.” Nothing is stated to show why the change of secretaries caused the time to be overlooked, nor is there any [486]elaboration of facts of the attorney’s illness to disclose in any way that it contributed to the failure to file an answer within the proper time.

Plaintiffs’ attorney, William E. Dennis, filed a declaration in opposition also containing hearsay and statements not supported by foundation. However, it is not shown that either side objected to the defective declarations, and apparently they were considered by the trial judge.