Hole v. Page

54 P. 1123, 20 Wash. 208, 1898 Wash. LEXIS 501

Opinions

The opinion of the court was delivered by

Scott, C. J.

This is an appeal from an order of the superior court of King county, refusing to set aside a judgment of default. The appellants appeared in the action and demanded security for costs, the plaintiff being a non-resident. On January 20, 1898, the plaintiff complied with the demand. On January 22, the appellants served upon the plaintiff’s attorneys, who were residents of Tacoma, by mail, a demand for copies of the instruments sued on, and it is admitted that this notice was received on the following Monday. The appellant’s attorneys reside at Seattle, and on said Monday the plaintiff’s attorneys caused to be served by an attorney residing at Seattle, upon the attorneys for the appellants, a motion for a default to be heard on the 27th day of January. Rule 8 of the superior court provides that the making of a demand for a copy of an instrument, etc., shall enlarge the time to plead by five days after response to the demand. On the 26th day of January, the plaintiff complied with the demand for the written instruments; and on the next day, the appellants not appearing, the plaintiff obtained a judgment of default against them. The motion to set aside said default was based upon affidavits showing the foregoing facts. The court refused to grant the motion, on the ground that no affidavit of merits was made by the appellants; and it is contended by the respondent that such an affidavit is necessary in all cases. But we axe of the opinion that an affidavit of merits is only required where a judgment of default is regularly obtained, and it is attempted to be set aside on the ground of inadvertence, etc. In this instance the default was prematurely entered before the time to plead had expired, and the appellants were entitled to have it set aside as a matter of right, without furnishing an affidavit of merits. .Nor do we think that they were called upon to appear at the time of the hearing of the motion for a default. It is contended by them, as a reason for not doing so, that they informed the attorney serving the motion of the demand for the copies, and that they supposed the motion for a default would be abandoned.

Being of the opinion that the court erred in refusing to grant the motion to vacate, the judgment is reversed and the cause remanded for further proceedings.

(Jordon and Reavis, JJ., concur.