Elliott v. Shaw

16 Cal. 377

• Court: California Supreme Court
• Decided: July 1, 1860
• Status: Published

Opinion

Field, C. J. delivered the opinion of the Court

Baldwin, J. and Cope, J. concurring.

Judgment in this case was entered by default, and the motion to open the same was denied. The excuse proffered by the defendant, in the affidavit upon which the motion was made, for his failure to plead —that he was under the impression, when he retained counsel in the case, that the time to answer had not expired; that he did not recollect the precise day upon which the summons and complaint were served; and that he was quite ill at the time, and did not as carefully note the time as he otherwise would have done—was entirely insufficient. It does not appear that Ms illness prevented Mm from attending to Ms business, or that it continued beyond the day. There is hardly a case where judgment of default has been entered, in wliich grounds equally forcible for opening the same might not be presented.

Judgment affirmed.