Mahoney v. Mahoney

51 Cal. 118

• Court: California Supreme Court
• Decided: July 1, 1875
• Docket: No. 4467
• Status: Published

Opinion

By the Court:

The default was entered March 25, 1874, in vacation. At the opening of the court in April following, a motion on the part of the defendant to open the default was made. The motion not being supported by affidavit, leave was then given the defendant to file affidavits in support of the motion, on or before the 21st day of April. The defendant, however, neglected to file affidavits within the time limited, and on the 23d day of April, the defendant being then still in default, the case was sent to the court commissioner to report the facts, and thereafter, on April 30, judgment was rendered.

The court adjourned for the term on the 2d day of May following.

On May 7, five days after the- adjournment of the court for the term, the defendant gave notice of a motion to set aside the proceedings of April 23, and the motion was granted on June 30 following. The application, founded on the notice of May 7, came too late. The court had already adjourned for the term. The general rule is that such applications must be made during the term. An application made after the court has adjourned can be entertained only upon showing some reason why the moving party had failed to make his application during the term. (Code Civ. Proc., Sec. 473.) In this case no reason is given or attempted, on the part of the defendant, as to why he failed to make the application during the term of0 the court.

The order of June 30, 1874, is reversed.