Bernheim v. Cerf

Citations

• 123 Cal. 170
• 55 P. 759
• 1898 Cal. LEXIS 1007

Syllabus

<p>Foreclosure of Mortgage—Answer Inadvertently Stricken Out— Vacation of Decree and Sale—Motion of Plaintiff.—In an action to foreclose a mortgage, where the complaint was unverified, and a general denial in the answer was inadvertently stricken out by the court, on motion of plaintiff, the defendant not having appeared at the trial, the plaintiff upon discovery of the error after decree in his favor and sale made thereunder, is entitled to move to vacate the decree and sale under section 473 of the Code of Civil Procedure, and to have' the cause restored to the calendar for trial, and he is not bound to move for a new trial. The aid of that section may be invoked, upon timely application, by one in whose favor the judgment was rendered, though he was present at the trial; and the allowance of the application of the plaintiff prejudiced no rights of the defendant.</p>