McGowan v. Kreling

McFarland, J. This is an appeal by plaintiff from an order of the court below opening the default of the defendant, and setting aside a judgment which had been entered upon said default in favor of plaintiff and against the defendant. [34] The action is brought against the respondent, as administratrix of the estate of William ICreling, deceased, to recover quite a large sum of money alleged to be due plaintiff for certain services averred to have been rendered by plaintiff to said Kreling, deceased, in liis lifetime. The respondent filed a demurrer to the complaint, which was overruled on April 26, 1895, with leave to the respondent to answer within ten days thereafter. Before the expiration of the ten days, the respondent, upon an affidavit that she desired to take the deposition of the. plaintiff as a witness before trial, “with a view of preparing her answer to the plaintiff’s complaint herein, and also prepare for the trial of said action,” had procured an order of the court that the deposition of the plaintiff be taken before a certain notary public on the twenty-fourth day of April, 1895. By written stipulation of the parties, the taking of the deposition was continued until the 8th of May, when the taking of it' was commenced, and afterward continued by stipulation to the 11th of May. It was further continued from time to time until May ‘25th; and, the deposition not having been completed, it was stipulated by the parties that the taking of the deposition be continued indefinitely, “to be reopened upon a notice of three days by either party.” The respondent had not filed any answer at the expiration of the ten days above mentioned, and the appellant had not taken any default, but had entered into a stipulation relative to the taking of said deposition, as above mentioned, while the respondent was in default for want of an answer, but on June 7, 1895, the clerk of the court entered the default, in which it -was recited that the 'demurrer was overruled, and “ notice thereof having been given and served upon the defendant.” A few days afterward the respondent gave notice of a motion to set aside the default, which was accompanied by an affidavit of merits, made by respondent, and also by a verified answer setting up a defense upon the merits, and an affidavit of her attorney. The affidavit of her attorney stated, among other things, [35] that the attorney for the appellant agreed orally to serve upon the attorney for the respondent the notice of the overruling of the demurrer, and not to take any further steps in the action until the taking of the deposition of the plaintiff had been completed, and that he relied upon said promise of plaintiff’s attorney, and upon his conduct in proceeding to take the deposition, and the consent to continuances thereof, etc. Counsel for appellant relies mainly upon the proposition that under section 283 of the Code of Civil Procedure, and a certain rule of the court below, a mere verbal agreement between counsel, not entered in the minutes of the court, cannot be enforced if it be disputed or denied, which was done in the case at bar. But the question here is whéther or not the court below, under all the circumstances of the case, abused its discretion in setting aside the default. “ Applications to set aside defaults are addressed to the sound legal discretion of the trial court, and if granted the orders are never disturbed by this court, except in cases of gross abuse.” (Chamberlain v. Del Norte, 77 Cal. 151.) The case of Woodward v. Backus, 20 Cal. 137, was very similar to the case at bar. In that case the defendant had failed to file an answer in time, because he relied upon the verbal agreement of the attorneys for plaintiff that he might have further time, and the affidavit of defendant’s attorney to the agreement was denied by the attorney for the plaintiff; and the court said: “ In making the order the court below was only required to exercise proper discretion, and the order must have been so plainly erroneous as to amount to an abuse of discretion to justify interference on our part. We think it cannot reasonably be held that the discretion of the court has been abused; and, whatever may be our opinion of the strict propriety of the relief granted, we see nothing in the objection taken to authorize a reversal.” The point as to the agreement being verbal is not mentioned in the opinion of the court, but that point was presented and argued in the [36] brief of counsel, and must necessarily have been considered by the court. In Huart v. Goyeneche, 56 Cal. 429, this court reversed an order refusing to open a default in a case very similar in principle to the one at bar. In Underwood v. Underwood, 87 Cal. 525, the court said: “The showing made on motion to set aside the judgment is a very weak one; but we are always unwilling to interfere with the decisions of the court below in matters of this kind.” In the case at bar the action was founded upon transactions apparently not based upon any written contract which occurred during the lifetime of deceased, and about which the administratrix may be supposed to have had but little knowledge, and it was quite proper and prudent for her to endeavor to get some knowledge of the facts from the deposition of the plaintiff before she filed her answer. The court below no doubt considered the fact that the appellant and respondent united in taking the deposition of the plaintiff, and stipulated for various continuances after the defendant had been in default, and that this conduct naturally deceived the respondent. It was quite apparent that the respondent intended to make a defense to the action, and that the furtherance of justice required the opening of the default. No doubt counsel for respondent, under the circumstances which appear in the affidavit of appellant’s counsel, was unwise in subjecting himself to the danger of suffering a default; and the court imposed a penalty of one hundred and twenty-five dollars as a condition of the permission to answer. A trial judge is generally acquainted with the attorneys and parties who-come before him, and is much better qualified to do justice in a case like this than is an appellate court dealing only with the printed record; and under all the circumstances of this case we do not feel warranted in saying that the court below abused its discretion in opening the default. Order appealed from is affirmed. Temple, J., and Henshaw, J., concurred. Hearing in Bank denied.