The order denying plaintiff’s motion to vacate the order of dismissal contends that the court erred in light of the circumstances. This motion was made pursuant to the provisions of Code of Civil Procedure and plaintiff argues that the facts clearly show that the failure to serve defendant Bush within three years and the dismissal resulting therefrom were caused by mistake, inadvertence, surprise and excusable neglect. The law is well settled that an application for relief is addressed to the sound discretion of the trial court, and that an appellate court will not interfere with the exercise of such discretion unless there is a clear showing of an abuse thereof. And this is true whether the motion to vacate is granted or denied. We must therefore consider the facts presented to the trial court to determine whether or not an abuse of discretion took place. Plaintiff alludes first to the circumstances which led to the failure to serve defendant Bush within the three year period, such as its hiring of new attorneys and the heart attack of the chief attorney. However, it is unnecessary for us to consider these facts in connection with the motion. The reason is that summons was not served within the three year period and dismissal is mandatory unless the defendant is absent from the state or has concealed himself therein. This precludes relief unless an exception did in fact exist but was not presented to the court at the hearing to dismiss because of some mistake, inadvertence, surprise or excusable neglect. Therefore, only plaintiff’s mistake, inadvertence, surprise or excusable neglect pertaining to the hearing and granting of the motion to dismiss would be a ground for relief.
Plaintiff next alludes to the facts surrounding Bush’s alleged concealment to avoid service of summons between December 12, 1955, and December 22, 1955. Again we note that the affidavits which were presented for and against the motion to set aside the judgment were conflicting on the question of concealment. The situation is exactly the same as on the motion to dismiss, and we are again powerless to reject the conclusion of the trial court. Since the evidence is conflicting upon which the motion to set aside the judgment was denied, this court may not interfere with the discretion of the trial court with respect thereto.
Plaintiff contends principally that the record shows surprise and excusable neglect on the part of its counsel because of the short notice he had regarding Bush’s intention to move to dismiss the action. Plaintiff argues that at the time of the January 12 hearing its counsel ‘was ignorant of the existence or scope of the absence-from-the-state exception’ as it pertained to defendant Bush. Yet, as we previously pointed out, counsel quoted this very exception in the memorandum which he had filed on the previous day. It does not appear that any attempt was made to continue the hearing to a later date so that evidence concerning the out-of-state exception could be produced. Also, it is interesting to note that counsel attempted to have defendant Bush take the witness stand so that he could be cross-examined. The court denied this request since the hearing was in the law and motion department where testimony generally is not permitted. Yet it has not been shown that counsel made any objection, sought a continuance, or attempted to have the hearing transferred to a department where oral testimony would be taken. Nor does it appear that counsel informed the court what he expected to show by defendant’s testimony. The fact remains that plaintiff’s counsel was aware of the absence-from-the-state exception and should have either presented affidavits on the point or requested that the hearing be in another department so that he could have cross-examined Bush. The ’surprise’ referred to is defined as some condition or situation in which a party to a cause is unexpectedly placed to his injury, without any default or negligence of his own, which ordinary prudence could not have guarded against. It is clear that the facts in the case at bar do not disclose such ’surprise’ as would require the trial court to grant relief. Nor can it be said that the facts disclose sufficient ‘excusable neglect.’ Plaintiff’s counsel would have been apprised of Bush’s reliance merely by reading the latter’s original notice of motion, authorities and supporting affidavit. Counsel had sufficient opportunity to investigate the facts and prepare the evidence, particularly since he had secured a continuance of the hearing from January 3 to January 12. Plaintiff is not entitled to relief merely because its counsel relied mainly upon the concealment exception rather than the out-of-state exception. It is the general rule that a client is chargeable with the negligence of his attorney. And the mere fact that an attorney does not make a skillful presentation of a client’s case will not warrant relief.
Court Ruled Plaintiff Failed to Prove Mistake by Counsel
Court Erred in Excluding Evidence Relating to “Unclean Hands”
