Essig

This is an appeal by plaintiff from an order of the superior court granting a motion made by defendant and respondent to vacate a default entered against him and setting aside a judgment rendered on such default.

The action was commenced Septembér 11, 1924. Summons was issued thereon and served on defendant on September 25, 1924. On October 7, 1924, the defendant not having answered or appeared except to move to dissolve the attachment, defendant’s default was duly entered, and, as the action was for liquidated damages, judgment was duly entered in favor of plaintiff and appellant for the amount prayed for in his complaint. Defendant, on October 14, 1924, served and filed a notice of motion to vacate such default and set aside said judgment and filed therewith affidavits and a verified answer which he asked permission to file. Plaintiff filed affidavits in reply, and defendant filed another affidavit in reply to plaintiff’s affidavits. After hearing on said motion the court granted the same and vacated said default and set aside said judgment and recalled an execution which had theretofore been issued thereon.

The showing upon which the court granted said motion was, that the…

I dissent. I cannot agree to what is inferentially expressed in the prevailing opinion regarding either the necessity for an affidavit of merits, as such, or the effect of the answer of defendant in that connection. Although attention is not directed to any statute which by its terms requires that on a motion to vacate a judgment taken by default an affidavit of merits is necessary, the practice seems to be well settled that either an affidavit of merits or its equivalent be on file at the time the hearing on the motion is had.

In the ease of Sampanes v. Chazes, 54 Cal. App. 612 [ 202 Pac. 462 ], it is held that on a motion for an order setting aside a default judgment, a sworn answer positively denying the material allegations of the complaint is a sufficient affidavit of merits. To the same effect is Fulweiler v. Hog’s Back Consolidated Mining Co., 83 Cal. 126 [ 23 Pac. 65 ]. Montijo v. Sherer & Co., 5 Cal. App. 736, 739 [ 91 Pac. 261 ], was similar to the instant case in its facts with reference to defects appearing in the affidavit of merits, as well as in the circumstance that an answer was filed with a motion to vacate the judgment. The court said: “Neither of the…