Plaintiff filed an action in the Municipal Court of San Francisco. His complaint was based upon an “open book account” and alleged that defendant became indebted to plaintiff for two motor trucks sold and delivered to defendant, in the sum of $2,000 plus $60 sales tax; that defendant was entitled to a credit of $850 for two automobile tires, leaving a balance due to plaintiff of $1,210.

On November 30, 1950, a demurrer to the complaint was filed and notice of motion given for change of venue to Shasta County. It appears from the briefs, but not from the record, that the motion for change of venue was denied, and on appeal the Appellate Division of the Superior Court of the City and County of San Francisco reversed the municipal court order denying the motion for change of venue. Pending this appeal, and on December 29, 1950, defendant filed in said municipal court what he denominated as “Answer and Cross-complaint and Counter-claim.” In his answer *307 defendant denied any indebtedness to plaintiff, “and for a separate and further defense and by way of counter-claim and cross-complaint and a first cause of action, cross-complainant complains of cross-defendant and alleges” that prior to March 23, 1950, cross-defendant became indebted to defendant and cross-complainant upon an oral contract in the sum of $1,066.34 for goods, wares and merchandise sold and delivered in Shasta County, which sum plaintiff and cross-defendant promised and agreed to pay, which was not paid, and prayed for the $1,066.34 with interest from March 23, 1950. A second count was added for the same $1,066.34 except alleging “reasonable value” instead of “agreed” sum. In the third defense ‘ ‘ and by way of counter-claim and cross-complaint” defendant alleged that prior to March 23, 1950, plaintiff and cross-defendant was the owner of four described motor trucks and in Shasta County plaintiff “sold and delivered, or caused to be sold and delivered,” to defendant and cross-complainant the said four trucks at the agreed price of $2,000; that by the agreement, defendant was to pay for the four trucks when they were delivered; that defendant was ready to receive and demanded possession of the four trucks but plaintiff failed and refused to deliver them and has made only two of said trucks available and by reason thereof defendant has been damaged in the sum of $1,500. Defendant prayed for $1,066.34 with interest thereon from March 23, 1950, at seven per cent (7%) per annum, for $1,500 for damages, and for costs.

On May 18, 1951, the case was ordered transferred to Shasta County, the record being filed there on May 28, 1951. On June 7, 1951, the clerk entered the default of plaintiff, and on the same day a judgment, signed by Judge Ross, was filed, which judgment was in favor of defendant upon his cross-complaint for $2,566.34, with interest and costs.

Promptly thereafter, by a notice dated June 14, 1951, plaintiff gave notice that on June 25, 1951, he would move the Shasta County court for an order setting aside said default judgment on the grounds: (1) Excusable mistake; (2) that the pleadings of the defendant constituted counterclaims and not a cross-complaint, and that a default judgment thereon was improper.

In support of the motion, the attorney for plaintiff made an affidavit in which he stated that he prepared a demurrer to defendant’s counterclaim designated as “Answer and Cross-Complaint and Counter-Claim,” and gave it to his then sec *308 retary, Mary Shaw-Reilly, with instructions to mail same to the clerk of the Municipal Court of the City and County of San Francisco, and a copy thereof to counsel for the 'defendant ; that she inadvertently filed the demurrer in the office file instead of mailing it as directed, and her failure to mail said demurrer was not discovered until June 8, 1951; that she died January 21, 1951, and the demurrer was prepared January 8, 1951. Defendant filed an affidavit opposing the motion. In deciding the motion Judge Baton filed an opinion and order which stated:

Defendant has appealed from the order setting aside the default and argues that his pleading was a cross-complaint and not a counterclaim, and that, therefore, the court erred in setting aside the default judgment.

Plaintiff has filed a cross-appeal from the portion of the order which finds that no excusable neglect was shown justifying relief from the entry of default.

We shall first consider the appeal of defendant, because if we conclude that the court correctly determined that the pleading in question was a counterclaim instead of a cross-complaint it will be unnecessary to discuss plaintiff’s appeal.

In the recent case of Case v. Kadota Fig Assn., 35 Cal.2d 596 , our Supreme Court said, at page 603 [ 220 P.2d 912 ]:

*310 And in Luse v. Peters, 219 Cal. 625 [ 28 P.2d 357 ], the court said at page 630:

■ In view of these authorities we are convinced that the trial court was correct in its conclusion that the three separate defenses of defendant, although designated as “by way of counter-claim and cross-complaint” were in fact counterclaims, and that therefore the default and default *311 judgment against plaintiff were erroneously entered because a counterclaim is part of defendant’s answer and under section 462 of the Code of Civil Procedure is deemed controverted without the necessity of any pleading.

No other points raised require discussion.

The order setting aside the default and vacating the judgment is affirmed, plaintiff to recover his costs of appeal.

Adams, P. J., and Van Dyke, J., concurred.

A petition for a rehearing was denied June 12, 1952.