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eBook details

• Title: Beard v. Beard
• Author : Supreme Court Of California In Bank
• Release Date : January 28, 1940
• Genre: Law,Books,Professional & Technical,
• Pages : * pages
• Size : 51 KB

Description

TRAYNOR, J. Respondent brought suit against appellant in the Superior Court of Los Angeles County on a judgment for payment of alimony secured in the Circuit Court of the State of Oregon. Appellant filed a cross-complaint alleging that the original alimony decree had been entered pursuant to a stipulation between the parties calling for payments for a period of only two years and that such payments had been made, and asking for a determination of his rights and duties under the stipulation and original judgment. The cross-complaint was duly served on respondents attorney but respondent failed to file an answer. The court entered a default judgment declaring that appellant was "entitled to a satisfaction of said [prior] judgment and a release from further liability thereunder." When respondents original cause came on for trial the appellant set up the judgment on the cross-complaint in defense and was sustained by the court. At this time the attorney for the respondent stated as his reason for failing to answer the cross-complaint: "You cannot file an answer to a complaint for declaratory relief", whereupon he was informed of his error by the court. Respondent then filed a motion to set aside the default judgment because of inadvertence, mistake and excusable neglect under Code of Civil Procedure, section 473, alleging that continued negotiations between respondent and appellant for a settlement of their claims out of court had lulled the attorney for the respondent into a sense of security by reason of which he failed to file an answer to the cross-complaint. Accompanying the motion was an affidavit by the respondents attorney to the effect that the respondent had a good defense to the cross-complaint and appended thereto was a proposed answer to the cross-complaint verified by the respondents attorney. The court granted the motion to set aside the default judgment. The appellant has appealed from the order granting this motion.

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