Burns v. Scooffy

Citations

• 98 Cal. 271
• 33 P. 86
• 1893 Cal. LEXIS 905

Syllabus

<p>Setting Aside Default—Excusable Neglect—Necessary Absence of Attorney. —A default should be set aside upon the ground of excusable neglect, with leave to answer, where an affidavit of merits on behalf of the defendant showed a good defense to the action, and where it appeared upon the motion that the defendant and her attorney resided about six hundred miles from the county where the action was pending; that before the expiration of the time for answering, and while the attorney of the defendant was engaged in drawing her answer, he received a telegram to the effect that his brother had been shot and dangerously wounded, and that he at once went to his relief; that it was necessary for him to stay with his brother for several days, and that during that time his physical and mental condition was such, in consequence of the condition of his brother, that he was unable to complete the answer in' time, and that an extension of time was asked for and refused.</p> <p>State School Land—Contest — Pleading—Answer—Demand — Approval of Application—Order of Reference. — In an action by an applicant for the purchase of state school land, to contest the applications of the defendants to purchase the same lands, and have them declared invalid and of no effect, an answer by one of the defendants showing that his application was filed in the office of the surveyor-general upon a certain date, more than one year previous to the commencement of the action, but failing to aver that within six months thereafter be demanded an approval of his application, or made demand of an order of reference, or that a reference to a court had been made as provided by section 3198 of the Political Code, is insufficient and fatally defective. The application to purchase became void at the expiration of six months unless the action indicated was taken, and it was necessary to aver it to have been so taken.</p> <p>Id.—Striking Answer from Files for Insufficiency — Amendment—Inadvertence of Attorney.—T