Opinion
Docket No. S.F. 12123.
January 24, 1928.
APPEAL from an order of the Superior Court of the City and County of San Francisco setting aside a default judgment. John J. Van Nostrand, Judge. Affirmed.
The facts are stated in the opinion of the court.
John W. Marshall and Ernest K. Little for Appellant.
Daniel Hone and Derby, Single Sharp for Respondents.
This is an appeal from an order setting aside a default judgment in the sum of $3,235.70. The plaintiff is engaged in business at Kalamazoo, Michigan, and the defendants are located at San Francisco. Summons was served on the defendant, Joseph Brown, on September 11, 1925, and on the defendant, Arthur Brown, on the seventeenth day of October following. On the day last named the defendants employed counsel to represent them. Counsel for defendants endeavored to obtain from plaintiff's counsel a stipulation extending time to plead, but without success. On the morning of October 28, 1925, counsel for defendants examined the records of the clerk's office and ascertained that no default had been entered. He thereupon applied to the court for and obtained an order extending the time of the defendants to plead to November 10, 1925. He then proceeded to the clerk's office to file the order and found that the default had been entered. It appeared by the affidavit of counsel for the defendants that counsel for both parties had occupied offices together and had been friends for a long period of time. After the default was entered negotiations were entered upon looking to a mutual agreement to set aside the default, with the suggestion from both sides that the case should be settled out of court. Plaintiff concluded that he would not stipulate to have the default opened up without the consent of his client. Correspondence was had with the plaintiff in Michigan who declined to authorize its counsel to set aside the default. These negotiations continued until after the holidays when illness invaded the family of counsel for the defendants resulting in the death of his mother and his own hospitalization. Immediately upon coming out of the hospital in March, 1926, and feeling not sufficiently recovered to attend to the matter, he engaged associate counsel to proceed in court to have the default set aside. Application was made for relief under and within the time provided by section 473 of the Code of Civil Procedure. Whereupon the judgment was set aside and the default vacated. It also appeared that after the defendant, Joseph Brown, had been served with summons on September 11, 1925, and before the default was entered counsel for plaintiff wrote to said defendant requesting certain information concerning the claim sued on. As late as October 15th, and before the defendant had employed counsel, plaintiff's counsel wrote to defendant, Joseph Brown, asking that the matter be adjusted. Other facts shown by the record tending to uphold the ruling of the trial court need not be related. [1] It is enough to say that no abuse of discretion on the part of the trial court is shown.
The order is affirmed.
Richards, J., and Langdon, J., concurred.