Summary
In Swift v. Canovan, 47 Cal. 86, it was held that where the defendant obtained an order extending his time to answer, but did not file or serve it, and the plaintiff, being ignorant of the order, before the time expired took judgment against him by default, that the court should, on payment of costs, open the default and permit the defendant to answer.
Summary of this case from Steuri v. JunkinOpinion
Appeal from the District Court of the Third Judicial District, City and County of San Francisco.
The action was for trespass, and the plaintiff had judgment for damages in the sum of $ 20,000, and appealed from an order opening the default.
COUNSEL:
James McCabe, for Appellant.
J. C. McCeney, for Respondent.
OPINION
By the Court:
The appeal in this case is from an order opening a judgment by default. It appears that the defendants had duly obtained from the Court Commissioner an order extending the time for answering; but had omitted to file or serve it. Before the expiration of the time granted, the default was entered. We are of opinion that the Court properly opened the default on the payment of costs. The more correct practice certainly is to file or serve the order extending the time to answer. But we are not aware of any provision of law requiring it to be filed or served. In such cases, however, it is proper to impose costs as a condition on which the default will be opened, as was done in this case.
Order affirmed.