Miller v. Cortese

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[Civ. No. 17156. Second Dist., Div. One. Nov. 30, 1949.]

JOHN E. MILLER, Appellant, v. ROSS W. CORTESE et al., Defendants; MIKE E. DINOW, Respondent.

COUNSEL

Jerrell Babb for Appellant.

T. B. Knight for Respondent.

OPINION

DORAN, J.

This is an appeal from an order setting aside a default.

Defendant was served with the complaint on August 31, 1948; default was entered September 16, 1948. Notice of motion to set aside the default was served November 10, 1948. Hearing on the motion was set for November 22d, continued to December 2d, on which last mentioned date it was granted.

It is contended on appeal that: "1. Respondent's failure to file answer to appellant's complaint within time permitted by law was not mistake, inadvertence, surprise or excusable neglect. 2. Respondent's affidavit of merit is insufficient. 3. Granting of the motion to vacate entry of default and default judgment was an abuse of the Court's discretion."

[1] The record reveals, as pointed out by respondent, that,

"On September 1, 1948, the respondent called at the home of M. H. Bershin, and discovered that Bershin and Cortese had previously been served with identical pleadings. This [94 Cal. App. 2d 849] respondent was informed by Bershin that an attorney, Louis Warren, had been retained to represent the three of them, to wit, Cortese, Bershin, and the respondent, Dinow. Bershin further stated that the necessary Answer had been filed; that the matter was now at a standstill until such time as it could be brought to trial; that this respondent would be kept fully informed in the matter.

"Through some misunderstanding, counsel, Louis Warren, had filed an Answer on behalf of Cortese and Bershin only. As a result, a default was entered against the respondent on September 17, 1948 and default judgment on October 8, 1948."

There appears to have been no abuse of discretion on the part of the court and the affidavits in support of the motion are sufficient. It is well settled that a trial on the merits is favored.

The order is affirmed.

White, P. J., and Drapeau, J., concurred.