Slack v. Murray

• Decision Date: 24 November 1959
• Citation: 175 Cal.App.2d 558,346 P.2d 826
• Parties: Fred M. SLACK, Plaintiff and Appellant, v. Mxbel MURRAY, as Administratrix of the estate of Daniel Joseph Flanigan, deceased, Defendant and Respondent. Civ. 9619.
• Court: California Court of Appeals Court of Appeals

Page 826

346 P.2d 826

175 Cal.App.2d 558

Fred M. SLACK, Plaintiff and Appellant, v. Mxbel MURRAY, as Administratrix of the estate of Daniel Joseph Flanigan, deceased, Defendant and Respondent.

Civ. 9619.

District Court of Appeal, Third District, California.

Nov. 24, 1959.

Hilger & Thomas, by Charles M. Thomas, Jr., Eureka, for appellant.

Mathews & Traverse, by Edward F. Traverse, Eureka, for respondent.

SCHOTTKY, Justice.

This is an appeal from an order denying a motion to vacate a judgment which was entered in favor of the respondent, Isabel Murray, as administratrix of the estate of Daniel Joseph Flanigan, after the trial court ordered appellant's action dismissed when he and his attorney failed to appear in court at the time set for the trial of the action.

Fred M. Slack brought an action in the form of a common count against the administratrix to recover the sum of $40,074.24 for services allegedly performed at the special instance and request of the decedent. After the complaint was filed respondent made a demand for a bill of particulars. A bill was finally furnished 16 months after the demand was made. Thereafter a motion to preclude evidence was made by the respondent. The court held the bill of particulars to be insufficient but denied the motion to preclude evidence contingent upon the respondent being furnished a proper bill of particulars 'setting forth all items of the account upon which his [appellant's] complaint is based in such manner that defendant [respondent] can properly prepare for trial.' At this time the trial date was continued to 2 p. m., Friday, May 23, 1958.

A second bill of particulars was filed. This listed ten separate items on which the claim was based. Respondent objected to the bill claiming that the bill was inadequate, particularly as to seven of the items. Again respondent asked that appellant be precluded from giving evidence. The court held that the bill of particulars was insufficient and another bill of particulars was ordered. The order dated May 9, 1958, provided in part: 'This case is now set for trial on April 23rd at 2:00 P.M.' The court denied the motion to preclude evidence subject to the appellant furnishing the additional bill of particulars. A third bill of particulars was furnished respondent. On May 23, 1958, the cause was called for trial. No appearance was made for the appellant. The court then ordered that the default of the appellant be entered and judgment was entered in favor of respondent.

On May 27, 1958, a motion to vacate the judgment on the grounds provided for in section 473 of the Code of Civil Procedure (inadvertence, mistake, surprise, and excusable neglect) was made. The affidavit filed by appellant's attorney in support of the motion alleged that the matter was set for trial on April 25, 1958; that thereafter it was continued until May 23rd; that a motion to preclude evidence was made on May 5, 1958, at which time the case was set for trial on April 23, 1958; that the court ordered a further bill of particulars which was furnished; that on May 23, 1958, the attorney for the appellant was present at a bankruptcy hearing; that his associate was in Department One of the superior court; that shortly after the affiant learned that the respondent was in court he communicated with the trial judge to account for his absence; that the judge stated he would refer the matter to Department One to determine whether or not the case would be reset or moved to the foot of the calendar; that the attorney presumed the court had taken notice of the conflict and that no further action would be taken at that time; that because of the mistake and inadvertance of affiant appellant was not notified of the time and place of trial.

Affidavits in opposition to the motion to vacate were also filed. These admitted that the order of May 9, 1958, stated that the trial date was April 23, 1958; that the order also stated that the motion to preclude evidence was denied subject to the service of a proper bill of particulars at least 10 days prior to the trial date; that a bill of particulars was served on May 13, 1958; that counsel for respondent appeared in court on May 23, 1958, with witnesses, one of whom had traveled a long distance to attend; that counsel for respondent and the judge tried to contact counsel for the appellant, and after they learned that he was attending a bankruptcy hearing and would not appear counsel for respondent made a motion to dismiss. The second affidavit filed in opposition alleged that the appellant's attorney was notified on April 23, 1958, that the trial of the matter was continued to May 23, 1958, solely to afford the appellant an opportunity to comply with the demand for a bill of particulars; and that the motion for judgment was made on the ground that appellant was not present either in person or by his attorney and on the ground that no valid bill of particulars was furnished in compliance with the order of the court.

At the hearing of the motion to set aside the default judgment, the court stated in response to the argument of appellant's counsel:

'The Court: On your affidavit, you refer to the fact that I, Judge Wilkinson, did contact you by telephone and talk to you, and stated that I would refer it back to Department One and determine whether to set another date or put it at the bottom of the calendar. I just want the record to show when I did talk to you and ask you about it, you said you received this notice or order of May the 5th, which had the erroneous date in it, setting it for April the 23rd, and that you did intend to contact the court to see exactly what date they meant. I then determined that maybe the court would know--Judge Watson was handling the case--maybe he would know whether or not you received proper notice, and that's why I said I'd refer it to Department One. But after that phone conversation Mr. Mathews then filed a document in the file showing that you were actually served with an order on April the 23rd.'

The court denied the motion and the issue upon this appeal is whether or not the court abused its discretion in refusing to grant the motion to vacate the judgment under the circumstances hereinbefore set forth.

The general rule is well stated in Waybright v. Anderson, 200 Cal. 374, at page 377, 253 P. 148, at page 149, as follows:

'Section 473 of the Code of Civil Procedure is a remedial provision and is to be liberally construed, so as to dispose of cases upon their substantial merits, and to give to the party claiming in good faith to have a subsisting cause of action or a substantial defense thereto an opportunity to present it. It is for this reason...