Roland v. Kreyenhagen

Citations

• 18 Cal. 455
• 1861 Cal. LEXIS 231

Syllabus

<p>Ejectment against It., claiming as owner, and R., his tenant, and E. & B., sub-lessees of R. Summons served on E. & B. only, who were in possession. No answer; and default taken. Suit dismissed as to It. & It., and judgment entered by the Court against E. & B. for restitution. It. applies, on affidavit, for an order vacating the judgment, and for permission to defend: Held, that K. had a right to be admitted to defend; and that the judgment was properly vacated for that purpose.</p> <p>Where a judgment is set aside, under the sixty-eighth section of the Practice Act, and. a party permitted to come in and defend, the Supreme Court will not interfere, unless there was a clear abuse of discretion in the Court below. The power of the Court, under this and other sections of the Practice Act, should be liberally exercised to mould and direct its proceedings, so as to dispose of cases upon their merits, and without unreasonable delay, regarding mere technicalities as obstacles to be avoided, rather than as principles'to which effect is to be given in derogation of substantial right.</p> <p>If third persons have acquired any rights to the premises in this case since the judgment and before it was vacated, or if K. has waived any rights, such matter can be set up on the trial. These questions cannot be tried by affidavits on the motion to set aside the judgment.</p> <p>Where a judgment is set aside under the sixty7eighth section of the Practice Act, and a party permitted to come in and defend, he must be compelled to pay costs.</p>