Shearman v. Jorgensen

Opinion — Garoutte

Garoutte, J.

This is an appeal from an order setting aside a default judgment. It is only in exceptional cases that orders of that kind will be reversed by this court, but those exceptional cases do arise, and we pass to an examination of the record.

Defendants’ demurrer to plaintiff’s complaint was overruled, and ten days given to answer. Plaintiff’s attorney, who resided in Alameda county, but had his law office in San Francisco, upon December 8, 1894, sent to defendants’ attorney, W. W. Davidson, by mail, a notification of the decision of the court in overruling the demurrer, and further notifying him that he was given ten days to answer. No answer was subsequently filed, and upon January 6th following plaintiff took a judg*484ment by default. Laying aside without consideration the affidavits of plaintiff introduced at the hearing of the motion to set aside this default judgment, let us see, if defendants’ showing, standing alone, makes a case for the granting of the motion. The defendants’ affidavit sheds no light upon the issue involved, and we are left to the affidavits of W. W. Davidson, defendants’ attorney, and E. C. Cordell, his clerk, to furnish materials sufficient to justify the making of the order by the trial court. It is stated in the affidavit of Cordell that Davidson received the letter sent'by plaintiff’s attorney December 9, 1894, and his testimony is uncontradicted. As an excuse for his laches in not filing his answer, while admitting the receipt of the letter, defendants’ counsel says he did not know that plaintiff’s attorney was a resident of the county of Alameda; that his letter of notification said nothing as to his residence; and upon the receipt of the letter he examined the statutes concerning the service of notice by mail, and found no provision therein for serving a notice in the manner thus attempted by counsel for plaintiff; that between Christmas day and the first day of January affiant Davidson prepared defendants’ answer, and through inadvertency upon his part said answer, as affiant learned for the first time on the eleventh day of April, was never served or filed; that affiant thought the said answer was served and filed within three or four days of the first day of January, 1894, but was mistaken. There are other matters stated in the affidavits of Davidson and his clerk, Cordell, but nothing which strengthens his showing upon the hearing of the motion.

Defendants’ counsel asks to have the judgment set aside, as appears by the foregoing recitals taken from the affidavits, upon the grounds: 1. That he did not consider the notice of the overruling of the demurrer a legal notice at the time it was received, and, in effect, admits that he has since ascertained that he was mistaken as to the law; 2. He drafted an answer (long after his time to answer had expired) which he thought had *485been served and filed, but, through inadvertency upon his part, it had not been done. The causes for the inadvertency are not stated in the attorney’s affidavit. Stripped of unimportant matters, these are the material facts disclosed by his affidavit, and we think they disclose a case barren of any merit, for mistake as to the law bearing upon the question of notice cannot be urged by him with any hope of success. Regardless of his lack of knowledge that plaintiff’s attorney was a nonresident of the city and county of San Francisco, he admits that he received the notice through the post-office December 9th, and this in law amounted to a personal service. (Heinlen v. Heilbron, 94 Cal. 636.) Under these circumstances the attorney’s plea of ignorance of the law as to the validity of the notice would be paralleled by a plea that he did not know that an answer to plaintiff’s complaint was required to be served and filed.

The second ground relied upon to support the motion, to the effect that the attorney drafted an answer, but, through inadvertence, it was not served or filed, is wholly inadequate to meet the requirements of the statute. The reasons, and the causes, and the excuses for the inadvertence are the matters which concern the court, and these are not stated. Inadvertence in the abstract is no plea upon which to set aside a default. The court must be made acquainted with the reasons for the inadvertence; and, if satisfactory, will act upon them and relieve from burdens caused by them; but, if the inadvertence is wholly inexcusable, as if it arises from gross negligence, the court will not look upon it kindly, and will have none of it.

For the foregoing reasons the order appealed from is reversed, and the cause remanded.

Van Fleet, J., and Harrison, J., concurred.

Hearing in Bank denied.