Able

Doctor B. Renault Able appeals from the order of the superior court sustaining without leave to amend the general demurrer of Zee Construction and dismissing Abie’s action.

Abie’s complaint alleges that he employed Cass Van Der Zee, doing business as Zee Construction (hereinafter sometimes referred to as Zee), to construct certain improvements on real property owned by Able. A dispute arose between the parties concerning the work and payment therefor, and on November 5, 1964, Zee filed an action in municipal court to foreclose a mechanic’s lien on the property. Able employed the services of attorney Richard Grail, who negotiated with Zee’s attorney but filed no answer and made no appearance in the municipal court action. On December 14, 1965, Zee filed a “Request for Entry of Default” and on July 6, 1966, he obtained a $4,165.18 judgment and decree of foreclosure and sale.

Meanwhile, Able obtained his file from Grail and in April 1966 he contacted his present counsel, David Pierson, regarding the matter. Pierson filed no answer but thereafter contacted and pursued negotiations with Zee’s attorney in ignorance that a default had been requested. Neither Able nor Pierson received…