Opinion
Hearing Granted by Supreme Court Nov. 14, 1929
Appeal from Superior Court, Los Angeles County; William C. Doran, Judge.
On petition for rehearing. Petition denied.
For original opinion, see 280 P. 701.
COUNSEL
Thomas A. Wood and O.B. DeCamp, both of Los Angeles (F. Britton McConnell, of Los Angeles, of counsel), for appellant.
Lawler & Degnan, of Los Angeles, for respondent.
OPINION
PER CURIAM.
Respondent bases its petition for a rehearing very largely upon the asserted fact that the complaint fails to state a cause of action in so far as it alleges that the bond furnished by itself covered two licensed real estate brokers, and fails to allege that any wrongful act has been performed by one of them and upon the claim that we have ignored "the absolute defense disclosed by the uncontradicted affidavits of appellee on file (in support of its motion to set aside its default), viz.: That appellee never became surety upon the bond of G.C. Harbolt, the only broker against whom an attempt is made to state a cause of action."
These matters were not before us on this appeal from an order vacating a default. The only issue presented for our determination or which we had jurisdiction to decide was whether or not the court below had abused its discretion in making the order setting aside the default upon the ground of excusable neglect in failing to appear in response to the summons served on it. This point we have determined after a careful examination of the affidavits upon which the petitioner respondent based its motion in the court below and upon the theory that all the facts stated therein were true (Corgiat v. Realty Mortgage Corp., 86 Cal.App. 37, 260 P. 573), but that they failed to disclose any excuse or justification for the failure of respondent to obey the summons. The question of the sufficiency of the complaint to state a cause of action was not germane to the matter presented to the court below on application for relief under section 473 of the Code of Civil Procedure. Respondent might have raised it either by demurrer or answer had it not, by its own inexcusable negligence, permitted its default to be taken; it may still raise it by an appeal from the judgment which, from the record before us, we do not understand has been entered, but which will probably follow upon the going down of the remittitur herein, since an objection that the complaint fails to state a cause of action may be raised at any stage of the proceedings and even for the first time on appeal (Code Civ.Proc. § 434; Spreckels v. Gorrill, 152 Cal. 383, 92 P. 1011; Bell v. Thompson, 147 Cal. 689, 82 P. 327), and this is true, although the judgment was by default. Ryan v. Holliday, 110 Cal. 335, 42 P. 891.
The petition for rehearing is denied.