William Wolff & Co. v. Canadian Pacific Railway

Citations

• 123 Cal. 535
• 56 P. 453
• 1899 Cal. LEXIS 1114

Syllabus

<p>Motion to Set Aside Default and Judgment—Conditional Order— Refusal of Tender—Dilatory Proceedings—Abandonment.—A motion to set aside a default and judgment seasonably made, the final disposition of which was delayed for a series of years, owing to dilatory proceedings, occasioned by the refusal of the plaintiff to accept the tender of counsel fees provided in an order granting the motion conditionally, and by an erroneous modification of that order, upon defendant’s motion, which was appealed from by plaintiff, -and b-y a subsequent action upon the judgment, and defense thereof, cannot be considered as abandoned, in the absence of evidence of an intention of the defendant to abandon the motion.</p> <p>Id.—Implied Finding against Abandonment—Absolute Order.—By a final order granting the motion absolutely, the court by implication passed upon the question of abandonment, and found against its existence.</p> <p>Id.—Abandonment a Question of Intention.—The abandonment of a motion to set aside a default and judgment is a question of intention, requiring something more than mere passivity of the moving party to establish it. It cannot be founded upon an estoppel in pais, nor upon laches, which operate only in invitum. It is not evidenced by obtaining time to file a brief upon demurrer to an answer in an action upon the judgment, in which was pleaded the motion, the conditional order, and the tender.</p> <p>Id.—Reasonable Diligence—Construction of Code.—The rule of diligence prescribed by section 473 of the Code of Civil Procedure, in making application to set aside a default, does not control the subsequent proceedings, nor is six months necessarily a measure of reasonable time for subsequent diligence; but if the application is made within the six months, the court is free to dispose of it as the exigencies of business and the circumstances of the case, under the guidance of the court, will permit.</p> <p>Id.—Laches—Question of Fact—Discretion.—Laches is an equitable