The motion to set aside the default herein was made pursuant to the provisions of section 473 of the Code of Civil Procedure and upon the grounds that the judgment was taken against defendant by reason of mistake, inadvertence, surprise and excusable neglect. The principal
On June 16, 1953, plaintiff filed this action for divorce in Kern County. He was unable to obtain service of summons in California and after an order of publication had been secured, personal service of the summons and complaint was made on the defendant in Clark County, Nevada, on July 30, 1953. On September 2, 1953, the cause came on regularly for hearing in the Superior Court in said Kern County, California, and the default was entered by order of court. Evidence was produced by the plaintiff and the court granted him an interlocutory decree of divorce on the ground of extreme cruelty. The decree was filed on September 3, 1953.
On January 14, 1954, defendant filed a notice of motion to set aside the default judgment and based her motion on the files in the action and on her affidavit, which was filed with her demurrer to the complaint. She states in her affidavit that starting with June 26, 1953, her attorneys conducted extensive negotiations with plaintiff's attorneys for a settlement of her property rights and that such negotiations were still being conducted at the time of the entry of the default; that she and her attorneys were led to believe that no default would be entered pending such negotiations for settlement; that on or about August 26, 1953, she submitted an offer of settlement to plaintiff and on August 29, 1953, plaintiff submitted a counteroffer; that while she and her attorneys were considering said counteroffer, plaintiff caused defendant's default to be entered on September 1, 1953, and caused the matter to be placed on the calendar for hearing on September 2, 1953; that she refrained from entering any appearance in said action, relying upon the representation that no default would be entered until the property settlement agreement between the parties had been completely executed; that she first learned of the entry of her default on September 8, 1953; that she was without funds to engage counsel and was unable to secure such services until January 4, 1954.
Affidavits in opposition to defendant's motion were filed by plaintiff and his attorney, James Vizzard. Plaintiff avers in his affidavit that the parties separated on June 10, 1953; that immediately thereafter a firm of attorneys engaged by defendant contacted plaintiff for the purpose of attempting to negotiate a property settlement agreement; that plaintiff
Mr. Vizzard stated in his affidavit that on June 16, 1953, he had a telephone conversation with Morris B. Chain who then represented defendant and Chain stated that he would recommend a settlement in the neighborhood of $10,000; that on June 18th affiant was informed by Chain that he no longer represented defendant; that on or about June 26th, affiant received a letter from a firm of attorneys in Las Vegas in which Mr. Goldwater stated that they were representing the defendant; that he was informed that plaintiff had filed suit for divorce in California; that "Mrs. Osborn agrees that a divorce should be had" but was concerned with her property rights; that "if it becomes necessary Mrs. Osborn will enter her appearance in the California action"; that Mrs. Osborn was willing to make a settlement of her property interests for $20,000 cash, attorneys' fees and her present expenses; that on July 2, 1953, Mr. Vizzard replied to this letter, stating plaintiff's financial situation and that his client made an offer of $5,000 and the automobile registered in defendant's name to settle the matter and that this offer would remain open for a reasonable period of time; that he would be glad to recommend that plaintiff's books and records be made available for examination; that on July 31, 1953, affiant informed Mr. Goldwater that plaintiff's previous offer of settlement would not stand any longer; that on or about June 26, 1953, affiant received a letter from Mr. Goldwater stating that Mrs. Osborn had rejected plaintiff's offer of settlement; that she planned to defend the action brought by Mr. Osborn in California and that as far as he knew she was "proceeding in California"; that on August 25, 1953, affiant had a telephone conversation with Mr. Goldwater in which affiant stated that plaintiff was not disposed to grant any continuance in the matter for further negotiations and that the instructions to affiant were to take a default judgment whenever the time to appear expired, but affiant would see
Appellant argues that her affidavit, together with the counteraffidavits of respondent and his attorney and the files and records in this action present a proper case for relief under section 473 of the Code of Civil Procedure and that the denial of appellant's motion to vacate the interlocutory decree and for leave to file written appearances constitutes an abuse of judicial discretion on the part of the trial court. We are not in accord with these contentions.
"While it is the policy of the law that every case should be litigated upon its merits, and that because of this the reviewing court will scan more closely orders denying relief
In Baratti v. Baratti, 109 Cal.App.2d 917, 921 [242 P.2d 22], it is held that to obtain relief a defendant must have acted within a reasonable time; that a party will not be relieved from his default unless he shows he acted in good faith and that his mistake, inadvertence, surprise or excusable neglect was the actual cause of his failure to appear; that in a matter in which an issue is tried on affidavits, the rule on appeal is that those affidavits favoring the contentions of the prevailing party establish not only the facts stated therein but also all facts which reasonably may be inferred therefrom; that "No showing was made to excuse defendant's failure to file her motion for relief until May 21, 1951, after consulting with her present attorney on February 21, 1951. In Benjamin v. Dalmo Mfg. Co., 31 Cal.2d 523, the court said, page 529 [190 P.2d 593]: `Defendant has not cited, nor has independent research disclosed, any case in which a court has set aside a default where, in making application therefor, there has been an unexplained delay of anything approaching three months after full knowledge of the entry of the default.' Courts do not relieve litigants from the effects of mere carelessness."
Appellant argues that in the interests of justice she should be granted her day in court. However, the record shows that she agreed that a divorce should be had and so informed her attorneys. It is evident that she was not seeking to preserve the marriage but was attempting to secure an advantageous property settlement agreement. In this connection the affidavits show that she received offers of settlement which were not unreasonable in view of the facts set forth in plaintiff's affidavit, and she declined to accept these offers. The facts must be here viewed from the standpoint of those adduced by the prevailing party (Couser v. Couser, supra, 477), and we cannot here hold as a matter of law that an abuse of the trial court's discretion was shown.
The order is affirmed.
Barnard, P.J., and Griffin, J., concurred.