YORK, J.
This is an appeal by plaintiff from an order of the superior court granting a motion made by defendant and respondent to vacate a default entered against him and setting aside a judgment rendered on such default.
The action was commenced Septembér 11, 1924. Summons was issued thereon and served on defendant on September 25, 1924. On October 7, 1924, the defendant not having answered or appeared except to move to dissolve the attachment, defendant’s default was duly entered, and, as the action was for liquidated damages, judgment was duly entered in favor of plaintiff and appellant for the amount prayed for in his complaint. Defendant, on October 14, 1924, served and filed a notice of motion to vacate such default and set aside said judgment and filed therewith affidavits and a verified answer which he asked permission to file. Plaintiff filed affidavits in reply, and defendant filed another affidavit in reply to plaintiff’s affidavits. After hearing on said motion the court granted the same and vacated said default and set aside said judgment and recalled an execution which had theretofore been issued thereon.
The showing upon which the court granted said motion was, that the defendant after service of the summons and complaint “at once” mailed the same to his attorney by special delivery, and his attorney had been instructed “to do whatever might be necessary to protect his interests,” and did not further communicate with his attorney until after default had been entered—that the attorney received the summons and complaint from defendant by mail on the 27th of September, 1924; that about the 30th of September, 1924, said attorney called at the defendant’s “former employer’s,” and made inquiries as to the whereabouts of the defendant in an effort to have defendant verify the answer which he had prepared; that he again called at the same place and made inquiries of “former fellow-employees of the former employer, but was unable to get any information”; that he had instructed defendant to be present in
court on October 6, 1924, when a motion was to be heard to dissolve the attachment that had been issued and levied in said action “but the said defendant was not present”; that he located him at a hotel on October 7th. Defendant had verified an affidavit which was used on the hearing of the last-mentioned motion on October 6th, which motion was argued in his absence one day before the default was entered. His affidavit showed that he had knowledge of the filing of the complaint and its contents before the service of the summons and complaint. He was evidently intending to avoid making a general appearance in the case, yet he asked the court to find that the indebtedness was secured by a mechanic’s lien. With his motion to set aside the default and judgment, defendant filed two affidavits of merits, one by himself and the other by his attorney. The affidavit made by defendant is deficient in that it does not show that the opinion of his attorney was founded on a statement to him of the facts of the case, and the affidavit of the attorney is deficient in that his belief that defendant has a good and meritorious defense to plaintiff’s complaint does not appear to be founded upon a knowledge of the facts of the case. As to the answer filed with the motion, it is defective in that the plaintiff alleges in his verified complaint specific facts which are first met with a denial of the indebtedness which was a legal conclusion only, and then follows a statement of facts that prior to said- day of August, 1924, defendant was indebted to plaintiff “the exact amount he is unable to state,” and that on that day he was the owner of an automobile encumbered for “about $800,” and plaintiff accepted the automobile subject to the encumbrance in full payment, settlement and satisfaction of the whole of the indebtedness of the defendant to plaintiff. Counter-affidavits were filed by plaintiff, denying specifically the allegations of said answer, but it was for the trial court to find what the facts were. In a statement of plaintiff in his affidavit, not denied, he said: “On October 2, 1924, said truck was taken from the possession of affiant in the claim and delivery action No. 153741 in this Court.”
In his motion to release the attachment, which is a part of the transcript on appeal, defendant filed an affidavit in which he stated that he was the owner of the truck on Au
gust 12, 1924, and that it was worth $2,000, and that it had not diminished in value, and that it was in plaintiff’s possession and held by him on his claim of lien. This affidavit was verified by defendant on the twenty-third day of September, 1924, and filed on the second day of October, 1924. No mention was made in this affidavit about his having sold the truck to the plaintiff. An affidavit made by George E. Bittinger, not denied, states that the automobile was the property of the Mortgage Discount Company, which company had entered into a contract with defendant to sell it to him, and that there was due on this contract of sale about $851, exclusive of interest. In defendant’s affidavit in reply to plaintiff’s affidavit, he says plaintiff knew that the Mortgage Discount Company was the legal owner of the automobile. Without reviewing all the affidavits, it appears that the defendant does not claim that there was any mistake either of fact or law, or inadvertence or surprise. The question, therefore, for the superior court to decide was whether the default was taken against the defendant through his excusable neglect, and whether, if there was excusable neglect, there was such a showing of merits as justified the court in exercising its discretion in granting defendant’s motion. Although appellate courts have been loath to reverse the action of the trial courts in their exercise of discretion in such matters, there must be some restraint upon a too liberal exercise of that jurisdiction.
In the exercise of its discretion a court cannot ignore a statutory law or hold any of its provisions meaningless. Unbridled discretion is dangerous. The exercise of discretion by optimists is very likely to be different from the exercise of discretion by pessimists. “It is different in different men, and in the same man it is not always the same.” It is not to be exercised
ex gratia. (Bailey
v.
Taaffe,
29 Cal. 423.)
The showing in this case establishes inexcusable neglect. The defendant knew the suit was pending and what allegations of the complaint he would have to meet even before the summons and complaint were served on him. He knew that he was required to plead within ten days of the time of service. His attorney knew that the 6th of October was at least his last day to answer the
complaint, and that he would be in default if he did not plead by that time, and on that day he was in court presenting a motion to dissolve an attachment therein. He knew, or should have known, that if he did not want to verify the complaint as defendant’s attorney that he could have obtained an extension of time to plead, and knowing these facts, he did not ask for an extension of time to plead, and permitted the defendant to default.
We are aware that the supreme court has held to a liberal policy in sustaining the granting or refusing to grant an order relieving a party from default.
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YORK, J.
This is an appeal by plaintiff from an order of the superior court granting a motion made by defendant and respondent to vacate a default entered against him and setting aside a judgment rendered on such default.
The action was commenced Septembér 11, 1924. Summons was issued thereon and served on defendant on September 25, 1924. On October 7, 1924, the defendant not having answered or appeared except to move to dissolve the attachment, defendant’s default was duly entered, and, as the action was for liquidated damages, judgment was duly entered in favor of plaintiff and appellant for the amount prayed for in his complaint. Defendant, on October 14, 1924, served and filed a notice of motion to vacate such default and set aside said judgment and filed therewith affidavits and a verified answer which he asked permission to file. Plaintiff filed affidavits in reply, and defendant filed another affidavit in reply to plaintiff’s affidavits. After hearing on said motion the court granted the same and vacated said default and set aside said judgment and recalled an execution which had theretofore been issued thereon.
The showing upon which the court granted said motion was, that the defendant after service of the summons and complaint “at once” mailed the same to his attorney by special delivery, and his attorney had been instructed “to do whatever might be necessary to protect his interests,” and did not further communicate with his attorney until after default had been entered—that the attorney received the summons and complaint from defendant by mail on the 27th of September, 1924; that about the 30th of September, 1924, said attorney called at the defendant’s “former employer’s,” and made inquiries as to the whereabouts of the defendant in an effort to have defendant verify the answer which he had prepared; that he again called at the same place and made inquiries of “former fellow-employees of the former employer, but was unable to get any information”; that he had instructed defendant to be present in
court on October 6, 1924, when a motion was to be heard to dissolve the attachment that had been issued and levied in said action “but the said defendant was not present”; that he located him at a hotel on October 7th. Defendant had verified an affidavit which was used on the hearing of the last-mentioned motion on October 6th, which motion was argued in his absence one day before the default was entered. His affidavit showed that he had knowledge of the filing of the complaint and its contents before the service of the summons and complaint. He was evidently intending to avoid making a general appearance in the case, yet he asked the court to find that the indebtedness was secured by a mechanic’s lien. With his motion to set aside the default and judgment, defendant filed two affidavits of merits, one by himself and the other by his attorney. The affidavit made by defendant is deficient in that it does not show that the opinion of his attorney was founded on a statement to him of the facts of the case, and the affidavit of the attorney is deficient in that his belief that defendant has a good and meritorious defense to plaintiff’s complaint does not appear to be founded upon a knowledge of the facts of the case. As to the answer filed with the motion, it is defective in that the plaintiff alleges in his verified complaint specific facts which are first met with a denial of the indebtedness which was a legal conclusion only, and then follows a statement of facts that prior to said- day of August, 1924, defendant was indebted to plaintiff “the exact amount he is unable to state,” and that on that day he was the owner of an automobile encumbered for “about $800,” and plaintiff accepted the automobile subject to the encumbrance in full payment, settlement and satisfaction of the whole of the indebtedness of the defendant to plaintiff. Counter-affidavits were filed by plaintiff, denying specifically the allegations of said answer, but it was for the trial court to find what the facts were. In a statement of plaintiff in his affidavit, not denied, he said: “On October 2, 1924, said truck was taken from the possession of affiant in the claim and delivery action No. 153741 in this Court.”
In his motion to release the attachment, which is a part of the transcript on appeal, defendant filed an affidavit in which he stated that he was the owner of the truck on Au
gust 12, 1924, and that it was worth $2,000, and that it had not diminished in value, and that it was in plaintiff’s possession and held by him on his claim of lien. This affidavit was verified by defendant on the twenty-third day of September, 1924, and filed on the second day of October, 1924. No mention was made in this affidavit about his having sold the truck to the plaintiff. An affidavit made by George E. Bittinger, not denied, states that the automobile was the property of the Mortgage Discount Company, which company had entered into a contract with defendant to sell it to him, and that there was due on this contract of sale about $851, exclusive of interest. In defendant’s affidavit in reply to plaintiff’s affidavit, he says plaintiff knew that the Mortgage Discount Company was the legal owner of the automobile. Without reviewing all the affidavits, it appears that the defendant does not claim that there was any mistake either of fact or law, or inadvertence or surprise. The question, therefore, for the superior court to decide was whether the default was taken against the defendant through his excusable neglect, and whether, if there was excusable neglect, there was such a showing of merits as justified the court in exercising its discretion in granting defendant’s motion. Although appellate courts have been loath to reverse the action of the trial courts in their exercise of discretion in such matters, there must be some restraint upon a too liberal exercise of that jurisdiction.
In the exercise of its discretion a court cannot ignore a statutory law or hold any of its provisions meaningless. Unbridled discretion is dangerous. The exercise of discretion by optimists is very likely to be different from the exercise of discretion by pessimists. “It is different in different men, and in the same man it is not always the same.” It is not to be exercised
ex gratia. (Bailey
v.
Taaffe,
29 Cal. 423.)
The showing in this case establishes inexcusable neglect. The defendant knew the suit was pending and what allegations of the complaint he would have to meet even before the summons and complaint were served on him. He knew that he was required to plead within ten days of the time of service. His attorney knew that the 6th of October was at least his last day to answer the
complaint, and that he would be in default if he did not plead by that time, and on that day he was in court presenting a motion to dissolve an attachment therein. He knew, or should have known, that if he did not want to verify the complaint as defendant’s attorney that he could have obtained an extension of time to plead, and knowing these facts, he did not ask for an extension of time to plead, and permitted the defendant to default.
We are aware that the supreme court has held to a liberal policy in sustaining the granting or refusing to grant an order relieving a party from default. The rule is well established that the appellate court should not interfere with the order of the superior court in such cases except where it appears that there has been an abuse of discretion.
(Ingram
v.
Epperson,
137 Cal. 370 [70 Pac. 165];
Alferitz
v.
Cahen,
145 Cal. 397 [78 Pac. 878];
Melde
v.
Reynolds,
129 Cal. 309 [61 Pac. 932];
Waite
v.
Southern Pacific Co.,
192 Cal. 467 [221 Pac. 204].) In the last cited case it was held that the defendant’s counsel was acting under a mistake of law and for that reason the default should have been set aside. In other words, that there was an abuse of discretion by the trial court in refusing to set aside the default. The ease most nearly in point in consideration of this appeal is that of
Bailey
v.
Taaffe, supra.
In that case an order setting aside a default was reversed, and the counter-affidavits, undisputed, were considered. In that case the supreme court, speaking through Justice Sanderson, said: “The relief sought is asked solely on the score of excusable neglect; and upon that subject all that is said is in substance that on account of the complicated condition of the defendants’ title, and from the fact that the complaint was verified, more time was required to prepare the answer than is required in ordinary cases, and that during a portion of the time allowed for answering, the attorney employed to conduct the defense was compelled to be absent from town. But so far as all this tends to establish a legal excuse, it is completely and conclusively answered by the fact that no reason is given why, if more time was required, either on account of the complications suggested, or on account of the necessary absence of counsel, an application to opposite counsel, or if denied by him, to the court, for an
extension of time was not made.” And in the case at bar it could have been said as the court said in that ease: “There is no pretense that an opportunity to make the application was, from any cause, not afforded.”
The contradictory position taken by the defendant in his affidavit to release the attachment and in his answer which he asked permission to file on his motion to vacate the default and in his affidavit made on October 18, 1924, made in reply to plaintiff’s affidavit, should not have appealed to the trial court in its exercise of its discretion. In his affidavit which defendant verified on September 23, 1924, he alleged that he was the owner of the automobile in question, and that plaintiff’s claim against him was secured by a lien thereon. In the answer he alleged that he had sold and transferred the automobile to plaintiff and plaintiff had taken it in full satisfaction of his indebtedness to plaintiff in August, 1924, and in his last affidavit he alleged that he was led to believe and did believe that plaintiff was holding the same for the full sum of his indebtedness to plaintiff. Those statements cannot all be true. If his statement in his first affidavit that he was the owner of the automobile on September 23, 1924, when the affidavit was made and when he presented it to the court on the sixth day of October, 1924, and that his indebtedness to plaintiff was secured by a lien thereon, was true, it cannot be true, as stated in his answer, that his indebtedness to plaintiff had been settled and discharged prior to the commencement of the action. How can allegations in his answer be reconciled with his statement in his last affidavit that he believed the plaintiff was holding the automobile for the full amount of his indebtedness to plaintiff f
Defendant’s inexcusable neglect in failing to plead to plaintiff’s complaint under the circumstances did not entitle him to the exercise of the court’s discretion in his behalf, and the order of the court vacating the default and setting aside the judgment was an abuse of the court’s discretion.
It is therefore ordered that the order vacating the default and setting aside the judgment be and the same is hereby reversed.
Conrey, P. J., concurred.