Luther v. Foster

• Decision Date: 08 May 1957
• Citation: 150 Cal.App.2d 725,310 P.2d 655
• Court: California Court of Appeals Court of Appeals
• Parties: John J. LUTHER, Administrator of the Estate of William Henry Luther, also known as William Luther, William H. Luther, and W. H. Luther, Deceased, Plaintiff, Cross-Defendant and Appellant, v. Mary B. FOSTER, Defendant, Cross-Complainant and Respondent. Civ. 9022.

Page 655

310 P.2d 655

150 Cal.App.2d 725

John J. LUTHER, Administrator of the Estate of William Henry Luther, also known as William Luther, William H. Luther, and W. H. Luther, Deceased, Plaintiff, Cross-Defendant and Appellant, v. Mary B. FOSTER, Defendant, Cross-Complainant and Respondent.

Civ. 9022.

District Court of Appeal, Third District, California.

May 8, 1957.

Robert F. Appel, Crescent City, for appellant.

J. Ralph Arnold, Crescent City, for respondent.

WARNE, Justice pro tem.

This is an appeal from a judgment in favor of defendant and cross-complainant on her cross-complaint to recover for services alleged to have been performed for the deceased, a claim therefor having been rejected by the administrator of his estate.

On March 4, 1952, appellant as administrator instituted an action against respondent, Mary B. Foster, to quiet title to certain real property and for the reasonable rental value of this property from the date of decedent's death and damages for depriving the estate of the use of certain personal property. Respondent was served with process the following day. On March 12, 1952, a demurrer was filed, and on April 10, 1952, appellant filed an amended complaint, and a copy thereof was served upon respondent's counsel. On May 1, 1952, a default was entered against the respondent. On October 17, 1952, the court granted respondent's motion to set aside the default and to permit her to file an answer and cross-complaint. Respondent's notice of motion was served on appellant's counsel on August 29, 1952, and was filed on September 5, 1952. Filed in support of said motion were respondent's proposed verified answer and cross-complaint and an affidavit by her counsel based upon surprise.

Appellant contends first that the court abused its discretion in granting respondent's motion to set aside her default. Appellant urges that no ground exists for relief, for the reason that respondent failed to show surprise to excuse the default and failed to show due diligence after discovery of the fact. The order vacating respondent's default recites that evidence was introduced. What evidence was received is not shown in the record on appeal, and so it must be presumed that the evidence supported the order made. Derrer v. Keeler Gold Mines, Inc., 63 Cal.App.2d 606, 147 P.2d 102; Douglass v. Guardian Holding Corp., 132 Cal.App. 585, 23 P.2d 80.

The proposed answer denied all the material allegations of the amended complaint. Respondent's attorney filed an affidavit in support of the motion. However, appellant filed no counter-affidavit. The record does not disclose that he made any showing that he would suffer any prejudice or that an injustice would result, although respondent's motion for relief was filed about four months after entry of the default. A default inadvertently permitted by a party having a substantial defense presents a case in which great latitude should be extended to the discretion of the court by which the default was set aside. Harbaugh v. Honey Lake Valley Land & Water Co., 109 Cal. 70, 41 P. 792. 'And where a party in default makes seasonable application to be relieved therefrom and files an affidavit of merits alleging a good defense, and plaintiff files no counteraffidavit and makes no showing that he has suffered any prejudice or that any injustice will result from a trial on the merits, slight evidence is required to justify setting aside the default.' 29 Cal.Jur.2d p. 99, sec. 152; Berri v. Rogero, 168 Cal. 736, 145 P. 95.

'The power vested in the trial courts by Section 473 of the Code of Civil Procedure should be freely and liberally exercised to the end that they may order their proceedings so as to dispose of cases on their substantial merits, * * *. In view of the policy of the law to have every litigated case tried on its merits, courts look with disfavor on a party who, regardless of the merits of his case, attempts to take advantage of the mistake, surprise, inadvertence, or neglect of his adversary.' (29 Cal.Jur.2d 97, Sec. 152, and cases cited therein.) Appellant has not shown that the trial court, by vacating and setting aside respondent's default and granting her leave to file her answer and cross-complaint, abused its discretion.

The cross-complaint alleged that on April 26, 1946, respondent and decedent entered into an oral agreement whereby respondent agreed to act as a housekeeper for the decedent, assist him in the operation of his ranch and look after his comfort and general welfare as long as he lived, and he agreed upon his death to leave a will giving her all of his real and personal property. The second cause of action alleged that at the time of his death, decedent was indebted to respondent for services performed for decedent at his request reasonably worth $12,500, less the reasonable value of board and room in the sum of $6,000, and that a claim therefor had been presented by her on March 14, 1952, and rejected by the appellant administrator on March 27, 1952. Appellant demurred to the second count on the ground that it failed to state facts fufficient to constitute a defense or counterclaim since said cross-complaint showed on its face that respondent failed to bring action on her rejected claim against the decedent's estate within theree months after notice of its rejection, as provided by Section 714 of the Probate Code, the answer and cross-complaint having been filed more...