Pearson v. Drobaz Fishing Co.

Citations

• 99 Cal. 425
• 34 P. 76
• 1893 Cal. LEXIS 684

Syllabus

<p>Vacation of Judgment—Excusable Neglect—Absence fbom Tbial—Insufficient Counteb-affidayiT—Abuse of Discretion.—Where acase was placed upon the calendar for trial shortly after issue joined, and stood number seven on the calendar upon the day on which it was set, and when the calendar was called on the morning of the day set for the trial thereof, the defendants’ at- , toriiey, thinking the case would not be reached for trial until the next day, and having business in another court, was not present, but he had some one answer “ready” to the call of the case, and the six preceding cases were at once continued or otherwise disposed of, and thereupon in the absence of the defendants and their attorney, the plaintiff was called as a witness and the case was thereupon submitted and judgment given in favor of the plaintiff, and the attorney for the defendants, upon being informed of the trial and judgment about eleven o’clock of the same day, immediately called upon the plaintiff’s attorney for a stipulation setting aside the judgment, upon a refusal of which he at once made an affidavit setting out the facts to show that the judgment was taken through the defendants’ mistake, inadvertence, and surprise, and an order was made on the afternoon of the same day requiring the plaintiff to show cause why the judgment should not be set aside, an affidavit by the plaintiff filed two days thereafter stating that his witnesses had gone and he did not know their whereabouts, is not a sufficient answer to the motion, and the refusal of the court to set aside the judgment was an abuse of its discretion.</p> <p>Id. — Tbial upon Merits to be Favoeed— Condition—Application of Judgment.—Applications for the setting aside of judgments procured without a trial of the case by the adverse party, are addressed to the sound legal discretion of the court, and should be disposed of by it as substantial justice may require, and this result will be best attained by a trial upon the merits, and ne