Leet v. Grants

36 Cal. 288

Opinion

By the Court, Sprague, J. :

In granting the order setting aside the judgment entered by default, upon the facts presented as the basis of the motion, the Court below seems to have very properly exercised its discretionary powers; but such order should have contained the statutory prerequisite to its taking effect, that applicant pay all costs accruing to the plaintiff in the cause up to the date of the filing and service of the motion. (Sec. 68 Practice Act; Howe v. Independence Company, 29 Cal. 74.)

With such modification the order should be permitted to stand, respondent paying the costs of this appeal.

So ordered, and cause remanded for further proceedings.