Cooper-Power v. Hanlon

California Court of Appeal

Cooper-Power v. Hanlon

95 P. 678, 7 Cal. App. 724, 1908 Cal. App. LEXIS 294

CourtCalifornia Court of Appeal

DecidedMarch 17, 1908

DocketCiv. No. 457.

StatusPublished

Cited by4 cases

This text of 95 P. 678 (Cooper-Power v. Hanlon) is published on Counsel Stack Legal Research, covering California Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Cooper-Power v. Hanlon, 95 P. 678, 7 Cal. App. 724, 1908 Cal. App. LEXIS 294 (Cal. Ct. App. 1908).

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Opinion

HALL, J.

This is an appeal by plaintiff from an order granting the motion of defendant to vacate and set aside a default that had been duly entered against her for failure to appear and answer to plaintiff’s complaint. The notice of motion was given a few days before the expiration of six months from the entry of the default, and stated that the motion would be made upon the grounds that said default had been taken against defendant through her inadvertence, mistake and excusable neglect. No answer or proposed answer *725 was served with the notice, but an affidavit of merits sworn to by defendant was served.

This affidavit of merits fails to state that defendant has or had' stated all "the facts of the case to her counsel, but in that regard simply states, “That affiant has fully and fairly stated the facts constituting her defense to the cause of action set out in the complaint in said'action, to her counsel, etc.” Such an affidavit has repeatedly been held insufficient as an affidavit of merits. (Palmer & Rey v. Barclay, 92 Cal. . 199, [28 Pac. 226] ; Morgan v. McDonald, 70 Cal. 32, [11 Pac. 350] ; People v. Larue, 66 Cal. 235, [5 Pac. 157] ; Nickerson v. California R. Co., 61 Cal. 268.)

The order must be reversed and it is so ordered.

Cooper, P. J., and Kerrigan, J., concurred.

A petition to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on May 14, 1908.

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HALL, J.

This is an appeal by plaintiff from an order granting the motion of defendant to vacate and set aside a default that had been duly entered against her for failure to appear and answer to plaintiff’s complaint. The notice of motion was given a few days before the expiration of six months from the entry of the default, and stated that the motion would be made upon the grounds that said default had been taken against defendant through her inadvertence, mistake and excusable neglect. No answer or proposed answer *725 was served with the notice, but an affidavit of merits sworn to by defendant was served.

This affidavit of merits fails to state that defendant has or had' stated all "the facts of the case to her counsel, but in that regard simply states, “That affiant has fully and fairly stated the facts constituting her defense to the cause of action set out in the complaint in said'action, to her counsel, etc.” Such an affidavit has repeatedly been held insufficient as an affidavit of merits. (Palmer & Rey v. Barclay, 92 Cal. . 199, [28 Pac. 226] ; Morgan v. McDonald, 70 Cal. 32, [11 Pac. 350] ; People v. Larue, 66 Cal. 235, [5 Pac. 157] ; Nickerson v. California R. Co., 61 Cal. 268.)

The order must be reversed and it is so ordered.

Cooper, P. J., and Kerrigan, J., concurred.

A petition to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on May 14, 1908.

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95 P. 678, 7 Cal. App. 724, 1908 Cal. App. LEXIS 294, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cooper-power-v-hanlon-calctapp-1908.

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