Weck

Plaintiff appeals from an order granting defendants’ application to be relieved from a default in failing to answer plaintiff’s complaint. One of the grounds urged for reversal is that in granting said application the trial court abused its discretion.

The facts set forth in the affidavits filed by defendants in support of their application were not controverted and may be stated as follows: The summons in the action was served on defendants on March 11, 1927, and consequently the statutory ten-day period within which they were required to appear and answer the complaint expired on March 21, 1927. The answer was in fact filed the following morning about 10:30 o’clock by defendants’ attorney, but default had already been entered. The answer had been prepared and verified, and was ready to be filed within the statutory time, but was not presented for filing until the day following because of a mistaken belief on the part of defendants that the summons had been served upon them on March 12, 1927 ; and said attorney did not learn of the mistake until he called at the county clerk’s office on the morning of' March 22, 1927, to file said answer.

In Brasher v. White, 53 Cal. App. 545 […