Reilly v. Ruddock

Citations

• 41 Cal. 312

Syllabus

<p>Setting aside Default.—Where the Court makes an order requiring the plaintiff to appear at a time specified, and show cause why a default of the defendant for failure to answer should not he set aside, and there is no service of the moving papers, but the application is heard and decided in the absence of plaintiff’s attorney, and where there is no reasonable excuse for the failure to answer within the proper time, it is error for the Court to set aside the default.</p> <p>Showing of Diligence.—It is not a sufficient showing of diligence to excuse a failure to answer, for an attorney who has interposed a demurrer, which is afterwards struck out, and default for failure to answer entered, to make an affidavit that he was present in Court at the calling of the law calendar, on law day, and answered, “Beady,” when the demurrer was called for argument, but did not then argue it, because the opposing attorney was not present in Court; and that he did not know that the Court would entertain a motion concerning a demurrer, except on a regular law day, without stating that he had no notice of the motion to strike out the demurrer, nor when he was informed, for the first time, that it had been struck out, nor that he supposed the demurrer to be still pending until after the time for answering had expired.</p>