was not properly entered, the presumption arises that the required. notice was given.107

§ 1432. Discretion of court.-The granting or refusing a motion to set aside a default based upon affidavits is a matter within the proper discretion of the court, and unless that discretion has been abused the appellate courts will not interfere.108 Although an order of the court below setting aside or refusing to set aside a judgment by default rests much in the discretion of the court, and will not be disturbed by the appellate court unless plainly erroneous, yet the discretion of the court below is not a mental discretion, to be exercised ex gratia, but is a legal discretion to be exercised in conformity with the law.109

§ 1433. Motion, when to be made.-A motion may be made. to set aside a default entered by the clerk, at any time before final judgment is rendered in the action, notwithstanding the court had adjourned for the term at which the default was entered before the motion is made to vacate it.110 A motion to set aside a judgment by default may be withdrawn upon leave of the court without notice to the adverse party.111

§ 1434. Motion will be refused.-A judgment by default should not be set aside on the ground of excusable neglect, because the preparation of the answer required more time than ordinary cases, and during a portion of the time the attorney was absent from town.112 A defendant having answered, and asked for more time

107 Evans v. Young, 10 Colo. 316, 3 Am. St. Rep. 583, 15 Pac. 424.

108 Woodward v. Backus, 20 Cal. 137; Roland v. Kreyenhagen, 18 Cal. 455; Howe v. Independence etc. Co., 29 Cal. 72; Winchester v. Black, 134 Cal. 125, 66 Pac. 197; Walton v. Hartman, 38 Wash. 34, 80 Pac. 196; Bannerot v. McClure, 39 Colo. 472, 90 Pac. 70, 12 L. R. A. (N. S.) 126.

109 Bailey v. Taaffe, 29 Cal. 422; Cutler v. Haycock, 32 Utah, 354, 90 Pac. 897. As to exercises of discretion by court in opening defaults, see Dougherty v. Nevada Bank, 68 Cal. 275, 9 Pac. 112; Buell v. Emerich, 85 Cal. 116, 24 Pac. 644; Wolff v. Canadian Pacific Ry. Co., 89 Cal. 332, 26

Pac. 825; Garner v. Erlanger, 86 Cal. 60, 24 Pac. 805; Reinhart v. Lugo, 86 Cal. 395, 21 Am. St. Rep. 52, 24 Pac. 1089; Youngman v. Tonner, 82 Cal. 611, 23 Pac. 120; Mulkey v. Mulkey, 100 Cal. 91, 34 Pac. 621; Burns v. Scooffy, 98 Cal. 271, 33 Pac. 86; Haggin v. Lorentz, 13 Mont. 406, 34 Pac. 607; Martin v. De Loge, 15 Mont. 343, 39 Pac. 312; Spokane Falls v. Curry, 2 Wash. 541, 27 Pac. 477; Haynes v. Schwartz Co., 5 Wash. 433, 32 Pac. 220.

110 Willson v. Cleaveland, 30 Cal. 192.

111 Jensen v. Barbour, 12 Mont. 566, 31 Pac. 592.

112 Bailey v. Taaffe, 29 Cal. 422.

to resist a motion to strike his answer from the files, cannot have his default set aside because he is a non-resident.113 A judgment by default cannot be set aside upon a mere abstract allegation of inadvertence of the attorney in serving or filing the answer, but the reason for the inadvertence must be stated.114

§ 1435. On terms.-The court may, upon such terms as may be just, relieve a party or his legal representatives from a judg ment, order, or other proceeding taken against him through his mistake, inadvertence, surprise, or excusable neglect. An order to release a party from a judgment taken against him by default under the sixty-eighth section of the Practice Act (section 473 of the Code of Civil Procedure), should only be granted upon the terms, as a condition precedent of payment of all costs accruing to the adverse party to the time of service and filing of notice of motion thereof.115 It is not an abuse of discretion for the trial court to vacate a judgment by default when the circumstances warrant it, without imposing terms as a condition to granting such relief.116 This does not give the court power to refuse relief when statutory conditions are met, and failure to appear is excused by lack of personal service, though service is had by publication.117 Where a motion to set aside judgment is granted "on payment of all costs," the judgment remains in force until the costs are paid.118

§ 1436. Affidavit-By whom made.-An affidavit on a motion to set aside a default should be made by the defendant, unless

See, also, People v. O'Connell, 23 Cal. 282; Parrott v. Den, 34 Cal. 79; Haight v. Green, 19 Cal. 113; Edwards v. Hellings, 103 Cal. 204, 37 Pac. 218; Williamson v. Cummings Rock Drill Co., 95 Cal. 652, 30 Pac. 762; Sanborn v. Centralia etc. Mfg. Co., 5 Wash. 150, 31 Pac. 466; Haley v. Eureka County Bank, 20 Nev. 410, 22 Pac. 1098.

113 Zobel v. Zobel, 151 Cal. 98, 90 Pac. 191.

114 Shearman v. Jorgensen, 106 Cal. 483, 39 Pac. 863. As to instances of excusable neglect, see Craig v San Bernardino Investment Co., 101 Cal. 122, 35 Pac. 558; Fulweiler v.

Hogs etc. Min. Co., 83 Cal. 126, 23 Pac. 65; Burns v. Scooffy, 98 Cal. 271, 33 Pac. 86; Bast v. Hysom, 6 Wash. 170, 32 Pac. 997; Douglass v. Todd, 96 Cal. 655, 31 Am. St. Rep. 247, 31 Pac. 623.

115 Howe v. Independence etc. Co., 29 Cal. 72; Bailey v. Taaffe, 29 Cal. 422; Leet v. Grants, 36 Cal. 288. See Wolff etc. Co. v. Canadian Pacific Ry. Co., 89 Cal. 332, 26 Pac. 825.

116 Robinson v. Merrill, 80 Cal. 415, 22 Pac. 260.

117 Gray v. Lawlor, 151 Cal. 352, 90 Pac. 691.

118 Gregory v. Haynes, 21 Cal. 443; Hartman v. Olvera, 49 Cal. 101.

good reason exists for having it made by some one else.119 The affidavit is not objectionable on the ground solely that it was made by counsel for the defendant.120 The affidavit may properly be made by one of two or more co-defendants for the benefit of all.121 A motion to set aside a judgment and for leave to answer will be overruled if there is no affidavit of merits.122 A verified answer answers the same purpose as an affidavit of merits.123 An affidavit of merits is not sufficient if it fails to state in what the defense consists, and why the affidavit is not made by a party to the action in place of by his attorney.124 The affidavits of plaintiffs are properly admitted as to whether or not default, which was entered on stipulation of the attorneys, was made without authority.125 An affidavit of defense, filed upon a motion to set aside a default, should set forth the facts relied upon, SO that the court can judge of the merits of the defense. 126 The motion to set aside judgment where there is a false return of service of summons is based upon irregularity and want of jurisdiction in fact, and not upon the mistake, inadvertence, surprise, or excusable neglect of the moving party, and it is not necessary that the motion be accompanied by an affidavit of merits.127 The filing of an answer after the entry of default does not affect the default, and it will not be set aside without the showing of some ground therefor. 128

§ 1437. Counter-affidavits.-The court cannot consider counteraffidavits on a motion to vacate a judgment by default, since these

119 Bailey v. Taaffe, 29 Cal. 422. As to when it may be made by purchaser under decree, see Boggs v. Hargrave, 16 Cal. 559, 76 Am. Dec.

561.

120 In re Weringer, 100 Cal. 345, 34 Pac. 825; Byrne v. Alas, 68 Cal. 479, 9 Pac. 850; Horton v. New Pass Co., 21 Nev. 184, 27 Pac. 376, 1018. 121 Palmer v. Barclay, 92 Cal. 199, 28 Pac. 226.

122 Parrott v. Den, 34 Cal. 79; Morgan v. McDonald, 70 Cal. 32, 11 Pac. 350; McBlain v. McBlain, 77 Cal. 507, 20 Pac. 61; Gauthier v. Rusicka, 3 N. Dak. 1, 53 N. W. 80. See Mulkey v. Mulkey, 100 Cal. 91, 34 Pac. 621.

123 Montijo v. Robert Sherer & Co.,

6 Cal. App. 558, 91 Pac. 261; Schaeffer v. Gold etc. Min. Co., 36 Mont. 410, 93 Pac. 344.

124 Copper King of Arizona v. Johnson, 195 U. S. 627, 49 L. Ed. 351, 25 Sup. Ct. 793, 76 Pac. 594, 9 Ariz. 67.

125 Security Loan etc. Co. v. Estudillo, 134 Cal. 166, 66 Pac. 257.

126 Florez v. Uhrig's Admr., 35 Mo. 517; Donnelly v. Clark, 6 Mont. 135, 9 Pac. 887.

127 Norton v. Atchison etc. R. R. Co., 97 Cal. 388, 33 Am. St. Rep. 198, 30 Pac. 585, 32 Pac. 452. See Clarke v. Baird, 98 Cal. 642, 33 Pac. 756.

128 Irvine v. Davy, 88 Cal. 495, 26 Pac. 506.

must be tried in the regular way,129 except upon issues of excuse for permitting the default.130

§ 1438. Default by fraud.-To entitle a person to relief against a decree on the ground of fraud, it must appear that he had a defense on the merits, and that he was prevented from interposing it by the fraud of the prevailing party without fault on his part.131 But it seems the charges of fraud need not be direct.132 The fraud must be in procuring the judgment, and not fraud relating to the issues involved. 133

§ 1439. Diligence must be shown.-A defendant who, having suffered a default, has obtained from the plaintiff a stipulation that the default may be set aside, must use reasonable diligence in applying to the court for the relief contemplated, or his right to relief will be lost. An unexplained delay of four months after notice,134 or of seven years in making the application, will justify the court in refusing to enforce the stipulation.135

§ 1440. Form of affidavit and notice.-An affidavit on motion to vacate a judgment by default, under the sixty-eighth section of the Practice Act, must show: 1. That the default occurred through mistake, inadvertence, surprise, or excusable neglect; and 2. That the defendant has a meritorious defense.136 The affidavit should be made by the party, or else show why it is not. 137 An affidavit by the defendant that he was under the impression when he retained counsel in a cause that the time to answer had not expired; that he did not recollect the precise day upon which the summons and complaint were served; that he was quite ill at the time, and did not as carefully note the time as he otherwise would, is insufficient to open a judgment by default.138 A notice.

129 Cutler v. Haycock, 32 Utah, 354, 90 Pac. 897.

130 Beck v. Lavin, 15 Idaho, 363, 369, 97 Pac. 1028.

131 Venner v. Denver Union Water Co., 40 Colo. 212, 122 Am. St. Rep. 1036, 90 Pac. 623.

132 Riddle v. Quinn, 32 Utah, 341, 90 Pac. 893.

133 Boldenweck v. King, 40 Colo. 253, 90 Pac. 634.

134 Smith v. Pelton W. W. Co., 151 Cal. 394, 90 Pac. 934.

135 Reese V. Mahoney, 21 Cal. 305. As to diligence generally, see People v. Frisbie, 26 Cal. 135; Lewis v. Rigney, 21 Cal. 268; Kittle v. Bellegarde, 86 Cal. 556, 25 Pac. 55. 136 Bailey v. Taaffe, 29 Cal. 422. 137 Copper King of Arizona V. Johnson, 195 U. S. 627, 49 L. Ed. 351, 25 Sup. Ct. 793, 9 Ariz. 67, 76 Pac. 594; Security Loan etc. Co. v. Estudillo, 134 Cal. 166, 66 Pac. 257.

138 Elliott v. Shaw, 16 Cal. 377. As to insufficiency of affidavit consult

of motion to set aside a default judgment which states the grounds on which it is made is sufficient, and it is not necessary to state the facts in detail.139

§ 1441. Excuse for default.-Misunderstanding between counsel,140 or the excusable neglect or inadvertence of an attorney, is as much ground for setting aside a default judgment against his client as that of the client himself.141 Where, by the neglect of defendant's attorney in not appreciating that an action for conversion was against both members of a firm, he did not attend the trial, and judgment was recovered against both of them, and no affidavit of merits or defense other than a general denial was filed, and one of them intended to contest the suit, the court's refusal to vacate the judgment is not an abuse of discretion.142 Neglect or delay of defendant's attorney to serve an answer, caused by reliance on information from a reliable attorney, whom he had requested to make inquiry, after being unable to reach plaintiff's attorney by letter or telephone, to the effect that plaintiff's attorney was ill and did not desire to press the matter, and told him he could have all the time he wanted to answer, was excusable neglect within the meaning of the statute requiring a default to be set aside when taken through the excusable neglect of the other party.143 Failure of plaintiff's attorney to file an answer to a cross-complaint, due to his belief that the counterclaim and cross-complaint constituted a single defense, and that the crosscomplaint did not require an answer, is excusable negligence.144 One defendant may rely upon the statement of a co-defendant that a defense will be made for him.145

It being apparent that the omission of parties to plead to a crosspetition, or to appear and defend, was not intentional, they should

Bailey v. Taaffe, 29 Cal. 422; People v. Rains, 23 Cal. 128; Elliott v. Shaw, 16 Cal. 377; People v. Lafarge, 3 Cal. 130; Nickerson V. California Raisin Co., 61 Cal. 268; Morgan v. McDonald, 70 Cal. 32, 11 Pac. 350. As to sufficient affidavits, see Will v. Lytle Creek Water Co., 100 Cal. 344, 34 Pac. 830; Fulweiler v. Hog's etc. Min. Co., 83 Cal. 126, 23 Pac. 65.

139 O'Brien v. Leach, 139 Cal. 220, 96 Am. St. Rep. 105, 72 Pac. 1004.

140 Elliott v. Quinn, 40 Colo. 328, 90 Pac. 607.

141 O'Brien v. Leach, 139 Cal. 220, 96 Am. St. Rep. 105, 72 Pac. 1004. 142 Alferitz v. Cahen, 145 Cal. 397, 78 Pac. 878.

143 Savings Bank of Santa Rosa v. Schell, 142 Cal. 505, 76 Pac. 250.

144 Langford v. Langford, 136 Cal. 507, 69 Pac. 235.

145 Montijo v. Robert Sherer & Co., 6 Cal. App. 558, 91 Pac. 261.