Ramsey Trucking Co. v. Mitchell

Plaintiff sued defendant on the claim that in servicing a GMC truck he “added by mistake, with inadvertence and neglect, ten pounds of gear oil instead of 140 weight mineral oil,” and that as a proximate result thereof the vehicle lost its rear end, to the damage of plaintiff in the sum of $2,209.54. The defendant was duly served and no appearance was filed for him within the time limited by law. A default judgment was granted in the sum of $2,209.54 and $8.00 costs on August 2, 1960. Notice of entry of judgment having been served by mail on the defendant on August 3, 1960, he consulted his attorney, who filed a motion to set aside the default and the judgment based thereon. The court granted *864 the motion, upon condition that the defendant pay to the attorney for the plaintiff the sum of $200 “to cover time and costs of Plaintiff and Plaintiff’s Attorney in presenting the evidence on Default and Motion opposing the Motion to Set Aside Default.” Within the 10-day period, counsel for defendant mailed a check for $200 to the attorney for the plaintiff; the check was cashed by him and the proceeds retained in his office account. Plaintiff appealed from the order setting aside the…

As to the motion of respondent to dismiss the appeal, I concur with the order made by this court for the reasons set forth in the opinion of Judge Conley. I cannot, however, concur with the order of the majority of this court affirming the trial court’s order on the appeal.

Whether or not there was an abuse of discretion on the part of the trial court depends upon the evidentiary support found in the declarations presented by the respondent herein to be relieved of the default entered against him.

“Further, as in any other case, the trial court’s determination of the facts as found from the affidavits of the parties will be conclusive upon the appellate court (Nomellini Construction Co. v. Deane, 160 Cal.App.2d 57, 59 [ 324 P.2d 654 ]), but if the facts as stated in the moving party’s affidavit do not constitute valid grounds for the relief sought, the trial court’s action in setting aside the default will be reversed (Benjamin v. Dalmo Mfg. Co., 31 Cal.2d 523 [ 190 P.2d 593 ] ; Yarbrough v. Yarbrough, 144 Cal.App.2d 610 [ 301 P.2d 426 ]). Hence the question narrows to whether or not the facts stated in the affidavit of defendant’s counsel show reasonable grounds for setting…