Dingwall

A default and default judgment were taken against defendant. Within the six-month period it pe titioned for and was granted relief by the trial court under Code of Civil Procedure section 473 upon the grounds default had been taken through its “mistake, inadvertence, surprise or excusable neglect.” A copy of the proposed answer and cross-complaint was filed with the application. We hold the trial court properly granted relief under the following facts disclosed by the affidavits:

The litigation involves a dispute over a contract of sale of real property. A complaint in ejectment and to quiet title was filed by plaintiff-seller August 2, 1961. Plaintiff was then represented by Messrs. Robinson and Robinson, attorneys, of Auburn, California. Although a complaint was filed, the parties had been negotiating and continued to negotiate a settlement of their controversy, defendant being represented by a Fresno attorney, Charles E. Small. In a letter written by Robinson to Small, an “open” stipulation to appear was granted, subject to a 10-day written notice. It was indicated in the letter the complaint had been filed to prevent a bar of the action by laches. A copy of the complaint and…