33 Cal. 323, Francis v. Cox

• Judge: JUDGES: Shafter, J.
• Parties: ISAIAH W. FRANCIS v. J. W. COX et al.
• Date: 01 October 1867
• Citation: 33 Cal. 323
• Court: California Supreme Court
• Docket Number: .

Page 323

33 Cal. 323

ISAIAH W. FRANCIS

v.

J. W. COX et al.

Supreme Court of California

October, 1867

Page 324

Appeal from the District Court, Fifteenth Judicial District, City and County of San Francisco.

The affidavit of defendant's attorney as to the failure to answer by reason of mistake, set out that the summons was served on the eleventh, and that he was retained on that day, and examined the facts, and directed his clerk to enter the cause on his journal with a memorandum of the day the time for answering expired; that his clerk neglected to make the entry, and he was constantly engaged in Court until the twenty-first, and then supposed that the time to answer expired on the twenty-third; that it required two days to prepare the answer, as the case was a complicated one, and he was compelled to spend most of his time between the twentieth and the twenty-third in examining abstracts of title, and on the twenty-third found a default had been entered.

The affidavit of merits was as follows:

" City and County of San Francisco, ss.

" J. Warren Cox being sworn, says: He is one of the defendants in the above entitled action; that he is as well acquainted with the facts as his co-defendant is; that he has fully and fairly stated the case in this action to William H. Patterson, who resides at San Francisco aforesaid, and who is defendant's counsel herein; and after such statement he is advised by his said counsel and verily believes that the defendants have a good and substantial defence to the merits in this action.

" That it is bona fide the intention of defendant to defend the same."

The plaintiff appealed from an order opening the judgment and allowing the defendant to answer.

No answer was presented with the affidavits.

COUNSEL:

B. S. Brooks, for Appellant.

The affidavit of merits presented in this case does not disclose any defence. The defendant may either, by his affidavit, disclose the facts constituting his defence to the action to the Court, or he may state those facts to his counsel and swear to the advice which his client gives him. In this case he does neither. We might well contend that when, as in this case, the action is upon the written promise of the defendant for the direct payment of money, the particular fact which constitutes the defence ought to be distinctly stated and sworn to. But, at all events and in any event, the affidavit shouldcome strictly up to the rule; for this Court has repeatedly expressed a regret that the rule had been...