Grady v. Donahoo

Citations

• 108 Cal. 211
• 41 P. 41
• 1895 Cal. LEXIS 844

Syllabus

<p>Vacation of Judgment — Trial without Notice — Surprise and Excusable Neglect—Removal of Attop.ney from County.—A motion by the defendants to vacate and set aside a judgment rendered against them, without notice of trial, upon the ground of surprise and excusable neglect, should be granted, and the defendants should be given an opportunity to defend upon the merits, where it appears that the attorney who had been retained in the case removed from the county, and, before going, took reasonable precaution to give notice to his clients of the fact of his removal and the necessity of procuring other counsel, but, through the inadvertence of an employee of defendants, knowledge of the fact of such removal did not reach the defendants until after the trial, and it appears that the case was not neglected by them, and they were proceeding to defend it in good faith and upon the merits; but, owing to the removal of their attorney, and in his absence, and without his knowledge or the knowledge of the defendants, the case was set down for trial and tried, and a judgment rendered against the defendants, and the application to set it aside when the facts were discovered was made promptly and so soon after the default that no considerable delay or injury was caused to the plaintiff.</p> <p>Id.—Discretion—Trial upon Merits—Doubt to be Resolved in Favor op Application.—The exercise of the mere discretion of the court ought to tend in a reasonable degree to bring about a judgment on the very merits of the case, and, where the circumstances are such as to lead the court to hesitate upon the motion to open a default, it is better, as a general rule, that the doubt should be resolved in favor of the application.</p>