Will v. The Lytle Creek Water Co.

California Supreme Court

Will v. The Lytle Creek Water Co.

34 P. 830, 100 Cal. 344, 1893 Cal. LEXIS 795

CourtCalifornia Supreme Court

DecidedNovember 25, 1893

DocketNo. 19244

StatusPublished

Cited by3 cases

This text of 34 P. 830 (Will v. The Lytle Creek Water Co.) is published on Counsel Stack Legal Research, covering California Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Will v. The Lytle Creek Water Co., 34 P. 830, 100 Cal. 344, 1893 Cal. LEXIS 795 (Cal. 1893).

Pincite

Opinion

Paterson, J.

This is an appeal from an order setting aside a judgment upon default.

Within the time allowed by law for answering, the attorney for the defendant herein filed a demurrer to the complaint, but this demurrer was entitled Glenn Will v. The Lytle Creek Water and Improvement Company. It appears that the mistake was made by the attorney’s stenographer, and that there is a corporation named the Lytle Creek Water and Improvement Company. The mistake was not discovered until two or three days after the default was entered, but defendant moved promptly to have the default set aside. As there [345]*345was no laches, and the mistake was a very natural one, we think that the court did not abuse its discretion in granting the motion.

The affidavit of merits was sufficient. Although made by the attorney of the defendant, it is stated therein that the affiant is personally familiar with the facts connected with the transactions upon which said action is brought; that affiant knows of his own knowledge of facts which constitute a full, meritorious and legal defense to said action, that the defendant has a complete defense to said action. It cannot be said, as claimed by appellant, that it is impossible for this statement to be true. The affiant may have had satisfactory evidence, written and oral, that the claim of the plaintiff’s had been entirely settled and paid off, if any ever existed.

The affidavit is not objectionable on the ground solely that it was made by counsel for the defendant. (Byrne v. Alas, 68 Cal. 479.)

The order is affirmed.

Garoutte, J., and Harrison, J., concurred.

Free access — add to your briefcase to read the full text and ask questions with AI

Paterson, J.

This is an appeal from an order setting aside a judgment upon default.

Within the time allowed by law for answering, the attorney for the defendant herein filed a demurrer to the complaint, but this demurrer was entitled Glenn Will v. The Lytle Creek Water and Improvement Company. It appears that the mistake was made by the attorney’s stenographer, and that there is a corporation named the Lytle Creek Water and Improvement Company. The mistake was not discovered until two or three days after the default was entered, but defendant moved promptly to have the default set aside. As there [345]*345was no laches, and the mistake was a very natural one, we think that the court did not abuse its discretion in granting the motion.

The affidavit of merits was sufficient. Although made by the attorney of the defendant, it is stated therein that the affiant is personally familiar with the facts connected with the transactions upon which said action is brought; that affiant knows of his own knowledge of facts which constitute a full, meritorious and legal defense to said action, that the defendant has a complete defense to said action. It cannot be said, as claimed by appellant, that it is impossible for this statement to be true. The affiant may have had satisfactory evidence, written and oral, that the claim of the plaintiff’s had been entirely settled and paid off, if any ever existed.

The affidavit is not objectionable on the ground solely that it was made by counsel for the defendant. (Byrne v. Alas, 68 Cal. 479.)

The order is affirmed.

Garoutte, J., and Harrison, J., concurred.

Cite This Page — Counsel Stack

Bluebook (online)

34 P. 830, 100 Cal. 344, 1893 Cal. LEXIS 795, Counsel Stack Legal Research, https://law.counselstack.com/opinion/will-v-the-lytle-creek-water-co-cal-1893.

Opinion

Related

Cite This Page — Counsel Stack