Essig v. Seaman , 89 Cal. App. 295 ( 1928 )

I dissent. I cannot agree to what is inferentially expressed in the prevailing opinion regarding either the necessity for an affidavit of merits, as such, or the effect of the answer of defendant in that connection. Although attention is not directed to any statute which by its terms requires that on a motion to vacate a judgment taken by default an affidavit of merits is necessary, the practice seems to be well settled that either an affidavit of merits or its equivalent be on file at the time the hearing on the motion is had.

In the case of Sampanes v. Chazes, 54 Cal.App. 612 [202 P. 462], it is held that on a motion for an order setting aside a default judgment, a sworn answer positively denying the material allegations of the complaint is a sufficient affidavit of merits. To the same effect is Fulweiler v. Hog's BackConsolidated Mining Co., 83 Cal. 126 [23 P. 65]. Montijo v.Sherer Co., 5 Cal.App. 736, 739 [91 P. 261], was similar to the instant case in its facts with reference to defects appearing in the affidavit of merits, as well as in the circumstance that an answer was filed with a motion to vacate the judgment. The court said: "Neither of the affidavits filed contains a showing that alone would be sufficient as an affidavit of merits, but the verified answer denies every material allegation of the complaint. This has been held sufficient too often by the supreme court to be considered an open question (citing authorities)."

In Savage v. Smith, 170 Cal. 472, 474 [150 P. 353], it is said: "The further objection that there was no affidavit of merits is met by the consideration that a verified answer setting forth a defense to the cause of action alleged in the complaint was actually on file at the time the notice was served. That such verified answer meets all the requirements of an affidavit of merits is, of course, well settled (citing authorities)."

See, also, Reher v. Reed, 166 Cal. 525 [Ann. Cas. 1915C, 737, 137 P. 263]; Melde v. Reynolds, 129 Cal. 308 [61 P. 932]; Merchants' Ad-Sign Co. v. Los Angeles etc. Co.,128 Cal. 619 [61 P. 277]; Brasher v. White, 53 Cal.App. 545 [200 P. 657]; Reidy v. Scott, 53 Cal. 69 — the last-cited case in effect holding that an answer may be used in aid of defective averments contained in an affidavit of merits.

In the prevailing opinion herein that part of the answer of defendant wherein he denies the indebtedness on which the action was brought is criticised for the reason that such denial "was a legal conclusion only." If it be conceded that the denial of defendant in his answer that "he is indebted to the plaintiff" constitutes but a conclusion of law, nevertheless the language used in such denial substantially follows in part the allegation found in the complaint, to wit: that "defendant became and is indebted to said plaintiff . . . for goods . . . sold and delivered." It has been held that an allegation that a specified sum "is now due and owing," although constituting a conclusion of law, is sufficient to support a judgment. (Penrose v. Winter,135 Cal. 289 [67 P. 772], overruling Ryan v. Holliday,110 Cal. 337 [42 P. 891]. See, also, Frisch v. Caler, 21 Cal. 71. ) However, the rule as announced in 31 Cyc., page 52, is that while in some cases a pleading which is made up partly of conclusions of law, instead of averments of facts, is not fatally defective, the more general rule is to the contrary (citing authorities). But in that regard, whatever may be the correct principle of pleading, it is clear that when the language contained in the answer follows that of the complaint, the plaintiff cannot be heard to complain that his allegation (whatever its effect) remains unanswered. As is stated in volume 1, page 257, of Sutherland on Code Pleading: "Where the allegation of the complaint is couched in the form of a conclusion of law a denial in the same form will be permissible and is efficient for all purposes."

It will further be noted that in the prevailing opinion herein the invalidity of the answer is also suggested because allegations in parts of the answer were inconsistent with certain statements appearing in affidavits theretofore filed by defendant. An examination of the clerk's transcript on the appeal discloses the fact that the inconsistencies to which attention is directed occur in an affidavit or affidavits made by defendant, not in his motion for an order to vacate the judgment, but in an entirely separate and independent proceeding in the action, to wit, a motion to dissolve an attachment therein. It would therefore seem that, conceding the fact that such inconsistencies existed, they had no place, as such, in a proper determination of the sufficiency of an affidavit of merits. But even had the inconsistencies to which reference is had appeared in the answer itself, it is well settled that inconsistent defenses may be pleaded, and that when that course is pursued, neither of such defenses may be used as an admission to destroy the other. (21 Cal. Jur., p. 134; 31 Cyc., pp. 147, 211.) It has been ruled in several cases that the fact that a pleading contains inconsistent counts or defenses, as, for example, where an answer in one part admits that which is denied in another, furnishes no ground for a judgment on the pleadings.

The syllabus in Botto v. Vandament, 67 Cal. 332 [7 P. 753], is as follows: "A judgment on the pleadings is not authorized if the answer deny the material allegations of the complaint, although in a special defense separately stated the allegations formerly denied are admitted."

To the same effect are: Amador County v. Butterfield,51 Cal. 526; Cass v. Rochester, 174 Cal. 358 [163 P. 212];Nudd v. Thompson, 34 Cal. 39. See, also, Martin v.Porter, 84 Cal. 476 [24 P. 109]; Banta v. Siller,121 Cal. 414 [53 P. 935]; Snipsic v. Smith, 7 Cal.App. 150 [93 P. 1035].

It therefore becomes apparent that to all intents and purposes the answer of defendant herein was a sufficient compliance not only with the express requirements of the provisions of section 473 of the Code of Civil Procedure requiring the filing of an answer with the motion to vacate a judgment, but that as well, according to the established practice, the answer met the judicial requirement that an affidavit of merits or its equivalent be filed either at the time the motion was noticed for hearing, or at least be on file at the time when the motion was actually made.

The remainder of the instant appeal depends upon what force is to be accorded the decision of the trial judge in his ruling on the motion to vacate the judgment. It is universally conceded that the determination of a matter of the character of that before the trial court rests within the sound discretion of the trial judge. It is likewise clear that only where such discretion has been grossly abused will the conclusion reached by the trial court be disturbed by an appellate court — from which it follows that merely because from the facts in the case the justices of the appellate court would have reached a conclusion different from that reached by the trial court affords no reason for reversing the judgment. In order that the appellate court be justified in directing a reversal of the order made by the trial court, it is necessary that no substantial foundation exist either in fact or in law for the conclusion and consequent judgment which is under attack. The facts upon which the trial court herein apparently acted were that in the steps preliminary to a consideration by the court of the motion to vacate the judgment, as a matter of law the requirements of the statute and the accepted practice were fully met by the defendant; that the defendant personally had no actual knowledge of the necessary procedure, but had entrusted the entire matter of his defense to an attorney at law; that as shown by the affidavit of such attorney, several days preceding the last day on which the answer of defendant could be filed within the time allowed by statute, the answer of defendant had been prepared; that within such time and on two separate occasions for the purpose of having defendant verify the answer, the attorney had personally called at the place of defendant's former employers and there made inquiry of such employers, as well as of former fellow-employees of defendant, as to the whereabouts of defendant, but was unable to obtain any information with reference thereto; that within such time the attorney had instructed defendant to be present in court at the hearing on the motion to dissolve the attachment levied in the action, but that defendant was not present; that on the day following the attorney located defendant in a hotel where he was rooming, but at that time the default of defendant for failure to answer the complaint had been taken.

The following language occurs in the course of the opinion inDowning v. Klondike M. M. Co., 165 Cal. 786, 788 [134 P. 970]: ". . . Where the court has opened a default and placed the cause in a condition for trial on the merits, an appellate tribunal is slow to interfere with the discretion therein exercised, even when the showing made in support of the motion is not of the strongest character (citing authorities). . . ."

The record herein shows that the default of defendant for failure to answer the complaint was taken on the very first available day, and that the motion to vacate the judgment was filed within one week following the date when the judgment was rendered.

Having application to a situation such as is here presented, it is said in Berri v. Rogero, 168 Cal. 736, 740 [145 P. 95]: ". . . The law does not favor snap judgments. The policy of the law is to have every litigated case tried upon its merits, and it looks with disfavor upon a party who, regardless of the merits of his case, attempts to take advantage of the mistake, surprise, inadvertence, or neglect of his adversary. Where a party in default makes seasonable application to be relieved therefrom, and files an affidavit of merits alleging a good defense, and the plaintiff files no counter-affidavit and makes no showing that he has suffered any prejudice or that injustice will result from the trial of the case upon its merits, very slight evidence will be required to justify a court in setting aside the default. . . ."

And the same thought is repeated in part in the case of Countyof Los Angeles v. Lewis, 179 Cal. 398, 401 [177 P. 154], as follows: ". . . It is only in a very plain case of abuse of discretion that this court will disturb the action of the trial court in a matter of this character, especially where the relief is granted and the application therefor is made as promptly as it was in this case."

In such a state of facts, and considering the law applicable thereto, I am unable to concur with my associates in their conclusion that the defendant was guilty of "inexcusable neglect," and that "the order of the court vacating the default and setting aside the judgment was an abuse of the court's discretion."