John A. Vaughan Corp. v. Title Insurance & Trust Co.

In an action against respondent Pan American Bank, the payee of appellant’s note, secured by a deed of trust, respondent Title Insurance and Trust Company, the trustee named in such deed of trust, and respondents Edward Rainey, State Banking Commissioner, and A. Q. Robison, his deputy, then liquidating said bank, to restrain the threatened foreclosure of said deed of trust upon the ground that the debt had been overpaid, appel-lant recovered a default judgment against all respondents. Upon respondents’ motion supported by affidavits of respondent Robison and their attorneys’ jointly, and accompanied by their verified answer, raising material issues, and without counter-showing by appellant, such judgment was vacated on the very day upon which respondents first learned of its rendition. This appeal from the order of vacation questions the sufficiency of the affidavit of merits and the affidavits purporting to show excusable neglect or mistake.

These objections must be decided in the light of the following legal principles:

“ 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…