Dennison v. Chapman

McFarland, J. This is an appeal by defendant from an order of the court below, denying his motion for a change of place of trial. The action was commenced in the superior court of San Francisco August 26,1892, and summons was served on appellant September 2, 1892; and by various orders his time to answer was extended to and including October 31, 1892. On that day—being the last day for answering—appellant filed a motion for a change of venue to El Dorado county, which he claimed as his place of residence; but no answer or demurrer was filed. The motion was afterwards denied without leave to renew it. On November 3,1892, default was regularly entered against appellant. Afterwards he moved to set aside the default; and, on November 18, 1892, the court ordered that the motion be granted, “ and defendant allowed ten days to answer upon merits.” On the last of the ten days appellant filed an answer, and also another motion for a change of venue. The court denied the second motion, and from the order denying it this appeal is taken. We think the order appealed from should be affirmed. [620] It is not necessary to inquire whether the first motion was a nullity because premature, and whether under any circumstances a second motion could have been entertained without leave having been given to renew when the first was denied. The appellant, after his time to appear had been repeatedly extended, finally suffered default. The court, in opening the default and allowing appellant to appear notwithstanding his laches, had undoubtedly the power to impose reasonable terms. It is clear that the court did impose the conditions that he should not come in for the purpose of further delay, or to file dilatory pleas, but should answer upon the merits; and it is equally clear that the condition under the circumstances was not unreasonable. The order is affirmed. De Haven, J., and Fitzgerald, J., concurred.