Francis v. Cox , 33 Cal. 323 ( 1867 )

By the Court, Shafter, J.:

The judgment was opened on affidavits showing, substantially, that the failure to answer was by mistake, and that the defendant had disclosed the facts of his defence to his counsel, and was advised by him that they constituted a good and valid defence to the whole of the plaintiff’s claim.

It is objected that the facts constituting the defence were not detailed to the Court in the affidavits. This objection is overruled on the authority of Woodward v. Backus, 20 Cal. 137, and Bailey v. Taaffe, 29 Cal. 426.

The opposing affidavit submitted to the Court does not dispute the mistake, nor does it deny that the defendant has a defence or color of defence to a part of the plaintiff’s claim; but, as to that part, the plaintiff consented at the hearing that the judgment might be so modified as to exclude it. Assuming, however, the defendant’s affidavit of merits to be true, no part of the plaintiff’s claim was just, and the proposed modification of the judgment fell short of the defendant’s right. Where, in a case like the present, merits are shown by affidavits, counter affidavits on that question cannot be received. (Hanford v. McNair, 2 Wend. 286.) No different rule was adjudged in Bailey v. Taaffe. The Court held in that case that the affidavit of the defendant in support of his motion disclosed no merits, and seem to have been confirmed in the conclusion that there were none in fact, by the affidavit of the plaintiff. That affidavit corroborated rather than contradicted the affidavit of the defendant.

Order affirmed.