Redding Gold & Copper Mining Co. v. National Surety Co.

As a matter of justice to the attorneys who represented the defendant and respondent before this court in the above-entitled matter, it is proper to say, as an addition to the facts stated in the opinion filed in said matter March 9, 1912, that said attorneys did not represent said defendant in the proceedings in the court below that resulted in the entry of default and judgment against said defendant.

This is an appeal from an order setting aside a default and vacating the judgment entered against def endant upon such default.

The matter of setting aside defaults and. vacating judgments entered thereon is very largely a matter of discretion, to be liberally exercised by the trial court in furtherance of justice, and where the action of the trial court will result in *490 a trial upon the merits the appellate courts are very reluctant to interfere with the exercise of such discretion, and will only do so when it clearly appears that there has been a plain abuse of discretion. (O’Brien v. Leach, 139 Cal. 220 , [ 96 Am. St. Rep. 105 , 72 Pac. 1004 ].)

Nevertheless cases do occur where the appellate court is obliged to say that the action of the trial court involves a plain abuse of discretion, and in such case it is the duty of the appellate court to reverse the action of the trial court. (Shearman v. Jorgensen, 106 Cal. 483 , [ 39 Pac. 863 ] ; Bailey v. Taffe, 29 Cal. 423 ; People v. O’Connell, 23 Cal. 282 .)

We think the case at bar is such a case.

Plaintiffs commenced this action upon an injunction bond given by defendant as the surety thereon, in an action wherein one…

This is an appeal from an order setting aside a default and vacating the judgment entered against defendant upon such default. The matter of setting aside defaults and vacating judgments entered thereon is very largely a matter of discretion, to be liberally exercised by the trial court in furtherance of justice, and where the action of the trial court will result in *Page 490 a trial upon the merits the appellate courts are very reluctant to interfere with the exercise of such discretion, and will only do so when it clearly appears that there has been a plain abuse of discretion. ( O'Brien v. Leach, 139 Cal. 220 , [ 96 Am. St. Rep. 105 , 72 P. 1004 ].) Nevertheless cases do occur where the appellate court is obliged to say that the action of the trial court involves a plain abuse of discretion, and in such case it is the duty of the appellate court to reverse the action of the trial court. ( Shearman v. Jorgensen, 106 Cal. 483 , [ 39 P. 863 ]; Bailey v. Taffe, 29 Cal. 423 ; People v. O'Connell, 23 Cal. 282 .) We think the case at bar is such a case. Plaintiffs commenced this action upon an injunction bond given by defendant as the surety thereon, in an action wherein one…