Bailey v. Taaffe

Citations

• 29 Cal. 422

Syllabus

<p>Affidavit to set aside a Judgment by Default.—An affidavit on motion to vacate a judgment by default, under the sixty-eighth section of the Practice Act, must show—First, that the default occurred through mistake, inadvertence, surprise, or excusable neglect; and second, that the defendant has a meritorious defense.</p> <p>Order Setting Aside a Judgment by Default.—Although an order of the Court below, setting aside or refusing to set aside a judgment by default, rests much in the discretion of the Court, and will not be disturbed by the appellate Court unless plainly erroneous, yet the discretion of the Court below is not a mental discretion, to be exercised ex gratia, but is a legal discretion, to be exercised in conformity with the law.</p> <p>Setting Aside a Default on the ground of Excusable Neglect.—A judgment by default should not be set aside on the ground of excusable neglect, because the preparation of the answer required more time than ordinary cases, and during a portion of the time the attorney was absent from town.</p> <p>Who should make Affidavit to set aside Default.—An affidavit, on motion to set aside a default, should be made by the defendant, unless good reasons exist for having it made by some one else.</p> <p>Showing Meritorious Defense on Motion to set aside Default.—An affidavit of the attorney, on motion to set aside a default, which states that from the examination of the defendant’s case, so far as he has made such examination, he verily believes that it is better than the plaintiff’s, does not show that the defendant has a meritorious defense,</p> <p>Dffendant’s Answer should be Shown to Court.—The better practice is to prepare and exhibit to the Court the defendant’s answer at the hearing of a motion to set aside a default.</p> <p>Costs on Opening a Default.—When a judgment is vacated and a default opened, costs should be imposed as a condition.</p>