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statute which gives the right of the recovery of costs. Section 1033 prescribes the procedure for their recovery,

and defines what costs and disbursements are recoverable. That section declares, in effect, that one may recover disbursements necessarily incurred in the action. The right accorded to a party, upon filing a proper bond, to take into possession the personal property in dispute, is a privilege accorded him by law. It is not a necessity to his cause of action.” It was therefore held in that case that the charge paid to a surety company for the replevin bond was not a proper item in the cost-bill. The same principle must apply to all the expenses incurred by plaintiff as a result of his exercise of this privilege and taking possession of the property pendente lite. No doubt, as suggested in the Williams case, the legislature could provide that such expenditures might be recoverable as costs, but it has not done so. The expenses incurred by the trustee for said purpose would probably be a matter of adjustment in the settlement of his account in the insolvency proceedings, but there seems to be no authority for making the defendant in this action liable for them.

The foregoing suggestions are made in view of future contingency, as the amount of the costs allowed being less than three hundred dollars, the action of the trial court in the matter is not reviewable upon appeal. (Foley v. California Florse Shoe Co., 115 Cal. 196, [56 Am. St. Rep. 87, 47 Pac. 42].)

The judgment is reversed. The separate appeal from the order taxing costs is dismissed.

Chipman, P. J., and Hart, J., concurred.

A petition to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on February 15, 1913, and the following opinion then rendered thereon:

THE COURT.-In further explanation of the decision in the case of Barton v. Brown, 68 Cal. 11, [8 Pac. 517), referred to in the opinion of the district court of appeal, we think it is proper to say that at the time that case arose and was determined, section 3440 of the Civil Code did not contain the proviso declaring that its provisions should not apply or

extend to a transfer of property exempt from execution. The proviso was first added to the section by the amendment of 1903. (Stats. 1903, p. 111.) The decision is therefore inapplicable to the present case and is not in conflict therewith.

On April 10, 1913, the district court of appeal renderud the following supplemental opinion in connection with the appeal from the order taxing costs :

THE COURT.-In the consideration of the appeal from the order taxing costs in the above-entitled cause, ante, p. 661, (130 Pac. 206), our attention was not called to the fact that Foley v. California Horseshoe Co., 115 Cal. 196, [56 Am. St. Rep. 87, 47 Pac. 42), has been overruled by the supreme court.

It must be deemed settled now that the amount of money involved in an appeal from an order of the superior court taxing costs is not determinative of the jurisdiction of the appellate court. (Southern Cal. Ry. Co. v. Superior Court, 127 Cal. 417, [59 Pac. 789); Sierra Union etc. Co. v. Woll, 144 Cal. 432, [77 Pac. 1038].)

It was erroneous therefore to dismiss the said appeal, but, of course, the effect of the reversal of the judgment was to vacate the order allowing costs.

[Civ. No. 1204. Second Appellate District.—December 18, 1912.) QUAN QU'OCK FONG and QUAN SUE, Appellants, v.

GEORGE W. LYONS, Constable of Los Angeles Township, in Los Angeles County, California, GEORGE W. ROSSO, MARTIN F. BETKOWSKI and F. H. BRAKESHULER, Respondents.


VACATE–GROUND-CONSTRUCTION OF AFFIDAVIT AND MOTION-PREMATURE DEFAULT.—Upon appeal from an order vacating a judgment by default, upon a fair construction of an affidavit attached to the motion and forming a part thereof, which states facts clearly showing that the default was prematurely entered, it appears from a fair construction of the affidavit and motion taken together, that

the notice of the motion to vacate the judgment was upon that


of merits which merely states "that affiant was fully advised of the

facts and circumstances involved in the defense" is insufficient. ID.—AFFIDAVIT OF MERITS REQUIRED UNDER SECTION 473, CODE OF CIVIL

PROCEDURE—Not REQUIRED UNDER MOTION TO VACATE PREMATURE DEFAULT JUDGMENT.-It is to be assumed that an affidavit of merits is required in proceedings for relief under section 473 of the Code of Civil Procedure. But no affidavit of merits is required in a proceeding by motion made and granted to vacate a judgment by de

fault, as having been prematurely entered. ID.-PRESUMPTION_VERIFYING MOTION TO VACATE - CALENDAR - EN

LARGED TIME TO ANSWER—PROTECTION EQUAL TO TIME OF SUMMONS -AFFIDAVIT OF MERITS NOT REQUIRED UNDER SUMMONS.—The court having before it the ground of the motion to vacate the premature judgment stated in the affidavit, it could, and it will be presumed that it did verify it by its calendar, and finding that the default and judgment were in disobedience of its order granting further time to answer, properly vacated the same. An enlarged time to answer is as complete a protection as is the original time granted by the summons, in which latter case, it is settled that, for protection, no affidavit of merits is requisite.

APPEAL from an order of the Superior Court of Los Angeles County vacating a judgment and setting aside a default entered against the defendants. Frank G. Finlayson, Judge.

The facts are stated in the opinion of the court.

Paul W. Schenck, Roland G. Swaffield, and John G. Mulholland, for Appellants.

C. W. Stahl, and C. H. Sayles, for Respondents.

ALLEN, P. J.-This appeal is by plaintiffs from an order vacating a judgment and setting aside a default theretofore made and entered against defendants.

An action, the character of which, or the sufficiency of the complaint to state a cause of action, is not disclosed, was commenced on December 13, 1911, by plaintiffs against defendants, and on December 21st defendants entered their appearance, one of the defendants filing a general demurrer to the complaint, and the other defendants filing a notice of

motion to require plaintiffs to state more specifically certain matters generally alleged. The demurrer was on January 8, 1912, overruled, and on the same day the motion of the other defendants was denied. On January 10, 1912, the default of the defendants, other than the demurring defendant, was entered, and on January 22d the court ordered a judgment to be entered against all of the defendants, except the demurrant. On January 19th the defendants, other than the demurrant, served notice of a motion to vacate the judgment and default, the same to be heard January 29th, which notice of motion stated that the same would be based upon the following grounds, to wit: 1. On the affidavit of C. W. Stahl, a copy of which was attached to and made a part of the motion; 2. On the verified answer duly served on plaintiff's attorneys January 17th, and then in the possession of the clerk of the superior court of Los Angeles County; and 3. Based upon the pleadings, files, and record of the cause. The affidavit of Stahl alleged that at the hearing of the demurrer and motion on January 8th, the court, when it overruled the demurrer and denied the motion, made and announced from the bench and entered upon the court calendar an order giving the defendants ten days in which to prepare and file their answer, which answer was prepared and offered for filing within the time specified, and the same was delivered to the clerk, who refused to mark the same as filed because of the entry of a previous default. Service of the answer of the demurring defendant was admitted. The record shows that the hearing of the motion to vacate was, by stipulation, continued to February 19, 1912, upon which date the same came on for hearing, and upon which hearing only the affidavit of Stahl was received and presented to the court and the court vacated the judgment and set aside the default of defendants. From this order plaintiffs appeal upon a bill of exceptions which discloses the matters herein before stated.

Appellant's first contention is that the notice of motion stated no grounds upon which the same would be based, as required by section 1010 of the Code of Civil Procedure. This section requires that the notice shall state when the motion will be made, the grounds upon which it will be made and the papers, if any, upon which it will be based. We think a fair construction of the notice of motion may be said to


state the grounds of the motion. It stated that the grounds were based upon the affidavit attached to and forming a part of the motion. This affidavit disclosed that the court had announced from the bench and entered upon the court calendar an order giving defendants until January 19th in which to answer. We think that reading this motion and affidavit together they state in a manner plainly to be understood that the motion would be based upon the grounds that the entry of default was made prematurely and within the time allowed by the court for answering.

It is next contended that the affidavit of merits was insufficient. This we think apparent. Such affidavit only stated “that affiant was fully advised of the facts and circumstances involved in the defense." This could not be considered an affidavit of merits. (Cooper-Power v. Hanlon, 7 Cal. App. 724, (95 Pac. 679], and cases cited.) We are then confronted with a question as to the necessity of an affidavit of merits where the motion is based upon facts showing a premature entry of default and judgment. We may assume that when a motion is for relief under section 473 of the Code of Civil Procedure, that an affidavit of merits is necessary. Under that section the parties are seeking relief on account of mistake, surprise, or excusable neglect. That section confers power upon the court to enlarge the time for answer. When such power has been exercised and an order made from the bench enlarging such time, it was the ministerial duty of the clerk to have entered such order in the minutes, and a party defendant who answers and tenders for filing the answer within such enlarged time is not guilty of any mistake or neglect, excusable or otherwise; and when the attention of the court is called to the failure of the clerk to enter the proper minute order and the entry of default on account thereof and the rendition of judgment based upon such unauthorized default, it possesses the power and it is the duty of the court to vacate such unwarranted proceeding and restore the record to the condition in which it would have been had the proper order of the court been recognized and obeyed. In the case at bar the court had before it he grounds of motion stated in the affidavit. It could, and it will be presumed that it did, verify the same from its calendar, and finding the fact to be that the default and subsequent proceedings were

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