Davis

Defendant husband was served with a copy of summons and complaint in a divorce action; after a hearing on the order to show cause (February 13, 1959) counsel orally agreed that defendant need not plead to the complaint until 10 days after written notice to his counsel. On February 18, 1959, defendant’s counsel prepared and submitted to plaintiff’s attorney a letter confirming their oral understanding that pending their “working out of the details of a settlement” he would have 10 days in which to plead and “no default will be taken without first giving written notice” to him. This letter was signed by plaintiff’s counsel February 19, 1959. Thereafter various conversations occurred between counsel in an effort to settle the property rights of the parties, particularly those relating to certain realty held in joint tenancy which plaintiff claimed as community property. Pending negotiations, default was entered on April 13, 1959; on December 16, 1959, plaintiff obtained a default decree of divorce against defendant which judgment was entered December 23, 1959.

On February 23, 1960, defendant filed a notice of motion to set aside default and default judgment under section 473, Code…