Gore v. Witt
| Decision Date | 02 April 1957 |
| Citation | 149 Cal.App.2d 681,308 P.2d 770 |
| Court | California Court of Appeals Court of Appeals |
| Parties | Glen GORE, Plaintiff and Respondent, v. Marcus L. WITT, Jr., Defendant and Appellant. Civ. 5394. |
Deadrich, Bates & Stewart, Kenneth H. Bates, Bakersfield, for appellant.
J. O. Reavis, Delano, Vizzard, Baker & Sullivan, Lawrence N. Baker, Bakersfield, for respondent.
The defendant has appealed from a default judgment, and from an order denying his motion to open and vacate the judgment of default and for other proper relief. These appeals have been consolidated and are presented on a clerk's transcript.
On May 3, 1956, the plaintiff filed a complaint for the foreclosure of a mechanic's lien in which he alleged that he was a contractor regularly and actively engaged in the business of leveling land; that in December, 1955, he entered into a contract with the defendant for the removal of trees from a certain 80 acres of land at the agreed price of $400; that on January 2, 1956, the parties agreed that the plaintiff should remove all trees and level this land in conformity with grade stakes placed thereon by a licensed surveyor, and the defendant agreed to pay him $400 for the removal of the trees and an additional $5,857.44 for leveling the land; that pursuant to these agreements and between January 10 and March 12 he removed all trees from the ground and stacked them on the property to be burned by the defendant, and completed the leveling work to the satisfaction of the said land surveyor; and that on March 28, 1956, he recorded a verified claim and notice of lien, a copy of which was attached to the complaint.
A summons was issued on May 3 which, with a copy of the complaint, was served on the defendant on May 7 in Tulare County where he lived. On June 8, 1956, the plaintiff filed a request for entry of the default of the defendant and on that day the clerk entered that default. On June 14, 1956, after a hearing at which the plaintiff testified and the notice of contractor's claim of lien and notice of lis pendens were received in evidence, the court ordered judgment in favor of the plaintiff in accordance with the prayer of the complaint. A written judgment and decree for foreclosure of mechanic's lien was signed by the judge on June 15, and was filed and recorded on June 18, 1956.
On June 22, 1956, the defendant filed notice that on July 2, 1956, he would move for an order vacating and setting aside the judgment entered and for such other relief as might be proper, and that the motion would be based on the grounds that the default judgment was taken against him through his mistake, inadvertence, surprise or excusable neglect. A proposed answer and counterclaim and two affidavits were attached to the notice of motion. The answer, among other things, admitted the agreement to pay $400 for the removal of the trees and admitted an agreement for the leveling work, but alleged that the agreed price for the leveling work was $5,208.64 instead of $5,857.44. It also denied that the work was completed on or about March 12, and alleged that 'to this date' the work has not been completed. As a separate defense and by way of counterclaim it was alleged that the plaintiff had agreed to complete the work on or before February 15; that the plaintiff did not complete the job of leveling; that the plaintiff refused to remedy the defects in the work, and the defendant was required to expend $1,125 in partially completing the work and it would require an additional $2,000 to finish the leveling; and that the defendant had been otherwise damaged by the plaintiff's failure to complete the work by February 15. In his affidavits the defendant alleged that he had a good and substantial defense on the merits; that the summons was served on him in Tulare County; that he believed it was served on May 16, 1956; that he remembered that it was served on that day because that day was his birthday; that the 30-day period within which he was required to answer expired on June 15 (a Friday) and the first day on which default could have been entered would have been June 18; that he retained an attorney to represent him on May 23 and told this attorney that he was served on May 16; that his attorney made a note of that fact on the back of the summons and complaint, and prepared his answer; that upon attempting to file the answer on the morning of June 18 he found that a judgment had been entered as of June 14; and that if said summons was served upon him on May 7 he was then and still is mistaken as to the date of service, by reason whereof he neglected to appear and answer until after his default had been entered.
Two affidavits were filed in opposition to the motion, one by the plaintiff's attorney and one by that attorney's secretary. The attorney alleged that on June 18, he received a telephone call from defendant's attorney requesting additional time in which to answer; that he refused this request on the ground that default judgment had been obtained on June 14, and a formal judgment signed on June 15; and that he had been told by the constable who served the summons that the defendant had attempted to persuade the constable to sign an affidavit to the...
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Culbertson v. Cizek
...Cal.App.2d 771, 775-777, 1 Cal.Rptr. 826, 82 A.L.R.2d 1424) including any action to foreclose a contractor's lien. (Gore v. Witt (1957) 149 Cal.App.2d 681, 686, 308 P.2d 770.) However, although Cizek was found not to hold the required contractor's license, the foregoing statute and rule of ......
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J.W. v. Watchtower Bible & Tract Soc'y of N.Y., Inc.
...objection that the complaint failed to state facts sufficient to constitute a cause of action may be considered." ( Gore v. Witt (1957) 149 Cal.App.2d 681, 686, 308 P.2d 770.) We apply the de novo standard of review when considering whether a complaint alleges sufficient facts to state a ca......
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