Heermanr v. Sawyer

48 Cal. 562, 1874 Cal. LEXIS 200

Opinion

By the Court, Wallace, C. J.:

The order setting aside the default and judgment is erroneous for the reason that payment of previous costs is not imposed upon the defendant as a condition of setting aside the judgment. The four hundred and seventy-third section of the Code of Civil Procedure (which, in this respect, is a copy of the sixty-eighth section • of the former Practice Act,) provides that a default may be relieved against “upon such terms as may be just, and upon payment of costs;” and it has always been held here that the irnposition of costs upon the moving party was indispensible to the validity of the order opening the default. (People v. O’Connell, 23 Cal. 281; How v. Independence Co. 29 Id. 72; Bailey v. Taafe, Id. 422.) This view renders it unnecessary to consider the points presented by counsel. On the return of the case the Court below can, of course, rehear the application upon the moving papers, and upon such other and further showing as it may permit to be made.

Order reversed.