Watson v. Francisco & Humboldt Bay Railroad , 41 Cal. 17 ( 1871 )

By the Court, Wallace, J.:

The complaint in this case is directly within the objections pointed out in Buckingham v. Waters, 14 Cal. 147, for it is a jumble of several causes of action in one count. It does not allege, for instance, how much of the four thousand nine hundred and seventy-three dollars sued for was owing to the plaintiff for his own work and labor bestowed upon the business of the defendant, nor how much was paid out for the use of the defendant in California; nor yet, how much was expended on the Atlantic side, “in advocating and urging upon the Congress of the United States the . passage of an Act by said Congress, granting certain lands to said defendants;” etc. More directness and precision in pleading these matters seems to be required by the code, as interpreted by this Court.

The defendant is a corporation, and the summons was served on its Secretary, August' twenty-fourth. The fourth day of September following would he the first day upon which default could be taken for want of an answer. On that day default was entered and final judgment demanded, and on the same day an aqaplication was made by the defendant to open the default. -This was allowed upon condition that the defendant should pay the plaintiff twenty dollars, and also make answer within five days. From this order this appeal is taken by the plaintiff. Applications of this character are addressed to the discretion—the legal discretion—of the Court in which the default has occurred, and should he disposéd of by it as substantial -justice may seem to require. Each case must he determined upon its own peculiar facts, for perhaps no two cases will be found to present the same circumstances for consideration. As a general rule, however, in cases where, as here, the application is made so immediately after default entered as that no considerable delay to the plaintiff is to be occasioned by permitting a defense on the merits, the Court ought' to incline to relieve. The exercise of the mere discretion of the Court ought to tend in a reasonable degree, at least, to bring about a judgment on the very merits of the case; and when the circumstances are such as to lead the Court to hesitate upon the motion to open the default, it is better, as a general rule, that the doubt should be resolved in favor of the application. In connection with its allowance, terms and conditions ought generally to be imposed upon the party in default, which, of course, should be more or less severe as the particular circumstances would seem to warrant.

In this case, as we have already seen, the defendant was required, as a condition of opening, the default, to pay the plaintiff a fixed sum of money, and also to plead issuably within five days.

Upon such an appeal as this the only question for us is, whether or not the. Court below abused its discretion in opening the default. If there is no showing of facts whatever in support of the application, an order granting it will be reversed, as was done in People v. O’Connell, 28 Cal., 282. In the case at bar, it appears that the Secretary of the defendant was misled by an incorrect publication of the time of the commencement of the suit, appearing in a printed sheet regularly issued, and containing information of Court proceedings relied upon by the business community in the City of San Francisco, and which had always been theretofore found to be “ invariably accurate.”

If this sheet had been correct in fact, then the defendant had the whole of the fourth day of September in which to answer. It was on that day that the default was entered, and on that day, too, that application for relief was promptly made by the defendant.

Upon these facts, in view of the statement of -a meritorious defense to the action and the conditions imposed upon the defendant, we cannot say that the Court below abused its discretion in opening the default.

Order affirmed.

Mr. Justice Sprague did not express an opinion.