Tuttle v. Scott

Citations

• 119 Cal. 586
• 51 P. 849
• 1898 Cal. LEXIS 676

Syllabus

<p>Vacating Judgment by Default—Affidavit of Merits—Discharge in Insolvency not a Technical Defense.—A discharge in bankruptcy or insolvency, disclosed in an affidavit of merits upon motion to vacate a judgment by default, upon the ground of excusable neglect, is not a technical defense rendering the affidavit of merits insufficient, but, like payment or release, is a plea in bar which goes to the merits of the action, and is a defense recognized by the statute, which, when properly interposed, is effectual and conclusive; and, where the showing of excusable neglect is sufficient to justify an order vacating the judgment to let in such defense, the order must be affirmed.</p> <p>Id.—Necessity of Pleading Discharge from Debt—Relief from Judgment. The necessity of pleading a discharge from the debt sued upon in insolvency or bankruptcy, in order to prevent being bound by the judgment, does not preclude the granting of relief against the judgment, under section 473 of the Code of Civil Procedure, but the existence of the rule that a defense must he pleaded created the necessity for the enactment of that section, in order that parties bringing themselves within its provisions might be so relieved.</p> <p>Id.—Excusable Neglect—Reliance upon Advice of Counsel.—Reliance of an insolvent debtor upon the advice of counsel as to the effect of his adjudication in insolvency, which led the insolvent to believe that the efforts of plaintiff to collect his claim as against the insolvent must be confined to the insolvent court, and to such dividends as he had there received, and which led him to pay no attention to a joint action against the defendant and another maker of the note in suit, is a sufficient excuse for his neglect to answer before judgment to justify the opening of a judgment by default to let in the defense of his discharge in insolvency.</p>