Daniels v. Colkins

THE COURT. This is an appeal by the defendant from an order of the superior court of the county of Los Angeles refusing to set aside and vacate a default judgment obtained after publication of summons. The appeal was placed upon a special calendar of this court upon an order to the respondent to show cause why said order appealed from should not be reversed, or that such order be made as might be meet in the premises. At the time of the placing of said cause upon said calendar and the entry of said order to show cause it appeared that the appellant’s brief had been filed herein but that no brief on behalf of the respondent had been filed, although the time for the filing of such brief under the rules of this court had long since expired. Respondent failed to appear upon the calling of *11 said calendar and the order to show cause was thereupon submitted. The appellant’s application for relief from said default judgment, obtained after publication of summons, was made and denied within three months from the entry thereof, and such application was therefore seasonably presented. (Code Civ. Proc., sec. 473.) An examination of the record discloses that with the notice of motion for relief under section 473 of the Code of Civil Procedure there was filed by the appellant a good and sufficient affidavit of merits, together with a copy of her proposed verified answer to the complaint, which proposed answer contains allegations constituting a good defense to the action. The application for relief having been seasonably made and having been accompanied by a sufficient affidavit of merits and a proposed verified answer setting forth a good defense to the complaint herein, it was incumbent upon the trial court to vacate and set aside the default judgment complained of. (Gray v. Lawlor, 151 Cal. 352 [12 Ann. Cas. 990, 90 Pac. 691]; Hoffman v. Superior Court, 151 Cal. 386 [90 Pac. 939]; Lilly-Brackett Co. v. Sonnemann, 157 Cal. 192 [21 Ann. Cas. 1279, 106 Pac. 715] ; Boland v. All Persons, 160 Cal. 486 [117 Pac. 547] ; Osmont v. All Persons, 165 Cal. 587 [133 Pac. 480]; Beggs v. Riordan, 44 Cal. App. 230 [186 Pac. 187].) Por the foregoing reasons the order appealed from is reversed, with directions to the court below to vacate and set aside the default judgment entered against the appellant herein and to permit said appellant to file her proposed verified answer.