PETER DOUGHERTY, Appellant, v. NEVADA BANK OF SAN FRANCISCO, Respondent, 68 Cal. 275

Foote, C. — This is an appeal from an order vacating a judgment obtained against the defendant, in its absence, and that of its counsel. The notice that a motion would be made to set aside the judgment stated the ground thereof to be “that the same was rendered improvidently, and that the defendant has a good and substantial defense to said action on its merits.” J. C.

Flood made an affidavit, which was duly served, filed, and read in support of the motion, which, among other things, contained this statement, “that he is an officer, to wit, the president, of the said defendant in the above-entitled action; that he has fully and fairly stated the case in said action to W. H. L. Barnes, Esq., hies attorney and counselor, residing in said city and county, his office being 426 California Street therein, and after such statement he is advised by his counselor and verily believes that he has a good and substantial defense on the merits to said action.” F. V.

Bell, the managing clerk of W. H. L. Barnes, Esq., who seems to have attended to the matter in hand for his principal, made affidavit, which showed that the plaintiff had not been active in bringing the cause on for trial, but the defendant had; that by a mistake this cause did not appear upon the calendar on the day set for its trial; and that, intending to serve a second notice to set the case for trial at another day, supposing the first notice had been mislaid by the clerk of the court, he found that judgment had already been entered.

That he had no knowledge of any day having been set for the trial of this cause, other than the date mentioned in the notice he had given, and therefore could not and did not appear. That he was familiar with the case, and verily believes the defendant has a good and substantial defense on the merits of said action. This court has often held that it is within the legal discretion of a trial court to grant motions to open defaults, or the contrary, and that in the absence of an abuse of such discretion, by that tribunal, its action should not be reversed.

It has even said this, speaking of the province of a trial court: “When the circumstances are such as to lead the-court to hesitate upon the motion to open the default, it is better, as a general rule, that the doubt should be resolved in favor of the application.” (Watson v. S. F. & H. B. R. R. Co., 41 Cal. 17; see also Woodward v.

Backus, 20 Cal. 138.) In the case in hand, it seems to us that the judge below, from the affidavits, might reasonably have inferred that the attorney of the defendant was taken by surprise, and that the judgment was obtained through his excusable neglect; that the defendant had a meritorious defense, and had been so informed by counsel. It may be that, strictly speaking, those affidavits might have been more technically and nicely drawn; and such is the better practice, but it is not always possible.

The court below exercised a reasonable and legal discretion, and did so in consonance with the heretofore expressed opinions of this court, that

section 473, Code of Civil Procedure, should be liberally construed to meet the ends of justice; and we are of opinion that its order in the premises should be affirmed. Belcher, C. C., and Searls, C., concurred. The Court. — For the reasons given in the foregoing opinion, the order is affirmed. Hearing in Bank denied. '