( Hitchcock v. McElrath, 69 Cal. 634, 635 [11 P. 487]; Johnson v. Brown, 115 Cal. 694 [47 P. 686]; Mission Film Corp. v. Chadwick P. Corp., 207 Cal. 386 [ 278 P. 855]; Tiffany Production, Inc. v. Superior Court, 131 Cal.App. 729 [ 22 P.2d 275].) [3, 4] The court can permit renewal of a motion even though it has been previously denied on its merits ( Hover v. MacKenzie, 122 Cal.App.2d 852 [ 266 P.2d 60]; Harth v. Ten Eyck, 16 Cal.2d 829 [ 108 P.2d 675]; Dahlin v. Moon, 141 Cal.App.2d 1 [ 296 P.2d 344]; Bice v. Stevens, 160 Cal.App.2d 222 [ 325 P.2d 244]); and, unlike the final determination of an action or proceeding by judgment, the decision on an ordinary motion is not res judicata and the court has jurisdiction to reconsider it. ( Johnston v. Brown, 115 Cal. 694 [47 P. 686]; Harth v. Ten Eyck, 16 Cal.2d 829 [ 108 P.2d 675]; Tiffany Productions, Inc. v. Superior Court, 131 Cal.App. 729 [ 22 P.2d 275].)

[1] The trial court has jurisdiction to entertain a second motion for relief under section 473, Code of Civil Procedure after denial of a first such motion. ( Kenney v. Kelleher, 63 Cal. 442; Hitchcock v. McElrath, 69 Cal. 634 [11 P. 487]; Harth v. Ten Eyck, 16 Cal.2d 829 [ 108 P.2d 675]; Bice v. Stevens, 160 Cal.App.2d 222 [ 325 P.2d 244]; Dahlin v. Moon, 141 Cal.App.2d 1 [ 296 P.2d 344]; Yarbrough v. Yarbrough, 144 Cal.App.2d 610 [ 301 P.2d 426]; Hover v. MacKenzie, 122 Cal.App.2d 852 [ 266 P.2d 60].) In Hitchcock v. McElrath, 69 Cal. 634 [11 P. 487], the order denying the second motion provided that the motion might be renewed.

The court announced: "[T]he Court feels that for that section [Civ. Code, § 140.5] to be applied as against the property in this case, which was brought from Illinois after years of marriage there and then years of living in residence in California, would be unconstitutional." The trial court's declaration of its belief that the quasi-community property legislation is unconstitutional may be utilized to interpret its finding of fact as to the extent of community property held by the parties. ( Union Sugar Co. v. Hollister Estate Co., 3 Cal.2d 740, 750 [ 47 P.2d 273]; Estateof McAfee, 182 Cal.App.2d 553, 555 [ 6 Cal.Rptr. 79]; Dahlin v. Moon, 141 Cal.App.2d 1, 4 [ 296 P.2d 344]; People v. One1951 Ford Sedan, 122 Cal.App.2d 680, 683 [ 265 P.2d 176].) The trial court, as noted above, did find the household furniture and furnishings to be community property and, pursuant to Civil Code section 146, awarded them to Leona.

" However, Mr. Hansen's declaration, which under the appellate rule of Griffith v. San Diego College for Women, 45 Cal.2d 501, 508 [ 289 P.2d 476, 47 A.L.R.2d 1349], establishes the facts herein, reveals that defendant discovered the default around the first of November after which settlement negotiations continued until approximately the middle of December when Mr. Cooney produced the records for his inspection. The pendency of negotiations for settlement were deemed significant in Beard v. Beard, 16 Cal.2d 645, 647 [ 107 P.2d 385]; Baxter v. Prescott, 158 Cal.App.2d 531, 533 [ 322 P.2d 1008]; and Dahlin v. Moon, 141 Cal.App.2d 1, 5 [ 296 P.2d 344]. Deferring to the immediate subsequent holidays, we compute the time here from the first of January 1969, a period of two months and seven days.

Thus appellate courts have always recognized that a court has power, on a subsequent motion, to reconsider its prior decision denying a similar motion. ( Harth v. Ten Eyck, 16 Cal.2d 829, 832-833 [ 108 P.2d 675]; City County of San Francisco v. Muller, 177 Cal.App.2d 600, 603 [ 2 Cal.Rptr. 383]; O'Brien v. City of Santa Monica, 220 Cal.App.2d 67, 70 [ 33 Cal.Rptr. 770]; Dahlin v. Moon, 141 Cal.App.2d 1, 4 [ 296 P.2d 344]; Hover v. MacKenzie, 122 Cal.App.2d 852, 857 [ 266 P.2d 60]; Josephson v. Superior Court, 219 Cal.App.2d 354, 358-359 [ 33 Cal.Rptr. 196]; see Bice v. Stevens, 160 Cal.App.2d 222, 225-226 [ 325 P.2d 244].) In such cases the subsequent motion is considered as a renewal of the previous motion.

[4] The courts look with favor upon actions being decided upon the merits and a party should not be deprived of his right to defend an action merely because he loses the race to the courthouse door. ( Farrar v. Steenbergh, 173 Cal. 94 [ 159 P. 707]; Smith v. Los Angeles Bookbinders Union, 133 Cal.App.2d 486 [ 284 P.2d 194]; Dahlin v. Moon, 141 Cal.App.2d 1 [ 296 P.2d 344].) [5] We would exercise our discretion to deny a peremptory writ if the denial of that writ would result in a trial on the merits but we are convinced that it would not, for the court's order vacating the default being void and the plaintiff who won the race to the courthouse door, by how many minutes we do not know, would still be in the position to take a judgment by default.

Therefore, the trial court in the instant case erred when he refused to admit in evidence the certified copy of the oral opinion of the court in the prior action between the parties. That opinion clearly disclosed that the basis for the nonsuit in the prior case was the court's decision that the failure to comply with section 820 of the Corporations Code rendered the contract invalid." Similar reasoning is found in Dahlin v. Moon, 141 Cal.App.2d 1, at pages 3-4 [ 296 P.2d 344], wherein the oral statement of the trial court formed the basis of the determination that a second motion was proper inasmuch as the prior denial "was intended to be on technical defects only, with opportunity to renew the motion so as to correct said defects."

"The behavior of defendant at no stage of the proceeding discloses excusable neglect, but on the contrary, first, a definite plan to permit a judgment of annulment and, second, a subsequent change of mind." [2] As in Dahlin v. Moon, 141 Cal.App.2d 1, 5 [ 296 P.2d 344], appellants have failed to show wherein they have been prejudiced, and the discretion of a trial court "is best exercised when it tends to bring about a judgment upon the merits of the controversy between the parties." [3] Moreover, appellants' counsel did not advise respondents' counsel that he intended to take a default, and as stated in 2 Witkin, California Procedure, page 1694:

However, the rule fell with Harth v. Ten Eyck, 16 Cal.2d 829 [ 108 P.2d 675], in which the court held, on facts similar to those at bar, that where the trial court considered a second motion under section 473 to set aside a dismissal with prejudice as to one defendant as a renewal of the motion to set aside its previous order of denial, the order granting the second motion was tantamount to permission to renew the motion to set aside, and it was appealable. (Also see Harth v. Ten Eyck, 12 Cal.2d 709 [ 87 P.2d 693]; Imperial Beverage Co. v. Superior Court, 24 Cal.2d 627, 634 [ 150 P.2d 881]; Beyerbach v. Juno Oil Co., 42 Cal.2d 11, 29 [ 265 P.2d 1]; Hover v. MacKenzie, 122 Cal.App.2d 852, 857 [ 266 P.2d 60]; Stephens v. Baker Baker Roofing Co., 130 Cal.App.2d 765, 773 [ 280 P.2d 39]; Dahlin v. Moon, 141 Cal.App.2d 1, 4 [ 296 P.2d 344].)" [4] Application for relief from a judgment "must be made within a reasonable time, in no case exceeding six months" after the judgment was taken.

[4] A court has power, on a subsequent motion such as this, to reconsider its prior decision of a similar motion. ( Hover v. MacKenzie (1954), 122 Cal.App.2d 852 [ 266 P.2d 60]; Dahlin v. Moon (1956), 141 Cal.App.2d 1 [ 296 P.2d 344].) It has even been held to be error for the court to fail to do so. (See Riskin v. Towers, 24 Cal.2d 274 [ 148 P.2d 611, 153 A.L.R. 442].)