Hancock v. Pico , 40 Cal. 153 ( 1870 )

Wallace, J.

delivered tbe opinion of tbe Court, Temple, J., Cbockett, J., and [Rhodes, C. J., concurring:

A judgment by default having been rendered against tbe defendant in an action upon contract for tbe recovery of money, be made a motion to open tbe default, and from tbe order denying tbe motion be brings tbis appeal.

Tbe defendant was personally served, in tbe county in wbicb tbe action was brought, with tbe summons and copy of tbe complaint, wbicb was verified in tbe usual form. He retained attorneys, to whom be entrusted tbe defence of tbe case, and then left tbe State and went on a visit to the State of New York without having prepared and verified an answer. In bis absence bis attorneys did not verify it for him. Tbe result was a default for want of answer, and final judgment followed.

We think that tbe Court below did not err in refusing to open tbe default under these circumstances. There was neither surprise nor excusable neglect in tbe defendant leaving tbe State, and thus deliberately placing bis case in such a situation that no defence could be made for him. No excuse is pretended to be shown why be did so.

Judgment is affirmed with twenty per cent, damages.

Sprague, J., expressed no opinion.