City of Pacific Grove v. Hamilton

• Decision Date: 17 November 1950
• Docket Number: No. 14378,14378
• Citation: 224 P.2d 19,100 Cal. App. 2d 508
• Court: California Court of Appeals
• Parties: CITY OF PACIFIC GROVE v. HAMILTON.

Page 19

224 P.2d 19

100 Cal.App.2d 508

CITY OF PACIFIC GROVE v.HAMILTON.

No. 14378.

District Court of Appeal, First District, Division 1, California.

Nov. 17, 1950.

Hudson, Martin, Ferrante & Street, Monterey, for appellant.

Reginald E. Foster, City Atty., City of Pacific Grove, for respondent.

FRED B. WOOD, Justice.

Defendant appeals from an order of the superior court denying his motion made under the provisions of section 473 of the Code of Civil Procedure to set aside a default judgment

The action is by the city for sewer rental charges, at the rate of $15 per year for a period of two years, for use of municipal sewer lines outside the city limits.Summons was served upon appellant on September 13, 1948.On January 5, 1949, respondent requested the clerk of the court to enter the default of appellant.On January 6, 1949, the default of appellant for failure to appear and answer the complaint was entered by the clerk.On January 7, 1949, judgment in writing, designated 'Decree on Default,' signed by the judge of the court, dated January 6, was filed.It recited that the default of appellant had been duly entered according to law and decreed that respondent recover judgment against appellant for $30 plus costs.

On June 25, 1949, appellant filed a notice of motion, with supporting affidavits, for an order 'setting aside that certain Decree on Default in the above-entitled matter, which decree was dated January 6, 1949.'On July 12, 1949, a minute order was made denying appellant's motion to set aside said default judgment.

On September 10, 1949, appellant filed his notice of appeal 'from the order denying defendant's motion to set aside default judgment dated the 6th day of January, 1949, which said order was entered by the above-entitled court on July 12, 1949.'

An application for relief, such as this, under section 473 of the Code of Civil Procedure, is addressed to the sound discretion of the trial court, an impartial discretion which must be guided and controlled in its exercise by fixed legal principles.It should appear that something more than mere inadvertence or neglect without reasonable excuse or justification existed, and that the inadvertence or neglect in question was not the result of mere forgetfulness but was based upon other circumstances which would suffice to render the same excusable.Benjamin v. Dalmo Mfg. Co., 31 Cal.2d 523, 525-526, 190 P.2d 593;Gorman v. California Transit Co., 199 Cal. 246, 248, 248 P. 923.It is the function of the trial court to weigh the evidence and resolve any conflicts between the affidavits of the opposing parties.Waybright v. Anderson, 200 Cal. 374, 379, 253 P. 148;Fickeisen v. Peebler, 77 Cal.App.2d 148, 152, 174 P.2d 883;Hadges v. Kouris, 71 Cal.App.2d 213, 217, 162 P.2d 476.

The facts stated in the affidavits presented herein by respondent, in resisting the motion to vacate the judgment, support the order denying that motion and indicate no abuse of discretion upon the part of the trial court in making that order.

From the affidavit of respondent's attorney it appears that shortly after service of summons appellant's attorney telephoned asking for some additional time beyond the ten days allowed by law; that affiant advised he was glad to grant some additional time but that as the city council was severely provoked because appellant had 'stalled' the city for over a year in its attempt to collect sewer rentals from property owners outside the city, and had advised other property owners not to pay the rental, the council insisted upon the matter being brought to trial at the earliest possible date; that affiant telephoned appellant's attorney at least twice in October 1948 and in each instance was asked for additional time to plead, and in each instance advised that it was becoming more and more uncomfortable to grant any further extension of time; that on each such occasion appellant's attorney promised to get his pleading on file within the very near future; that on November 3 the city mayor advised affiant to give appellant no longer than ...