To be entitled to relief from mistake, a party must prove some mistake, either of fact or of law, of himself or his counsel. Plaintiff has failed to do this. The facts before us indicate that plaintiff’s counsel was aware of both exceptions regarding a dismissal. And no mistake of fact on the part of plaintiff or its counsel has been shown. Plaintiff also suggests that the failure of its counsel to establish a defense to dismissal at the January 12 hearing was the result of inadvertence. However, as we have already pointed out, when counsel’s request to examine defendant Bush was denied, it does not appear that counsel made any disclosure to the court of what he expected to prove, or any attempt to have the matter transferred to a department where oral testimony would be received. ‘The inadvertence contemplated by the statute does not mean mere inadvertence in the abstract. If it is wholly inexcusable it does not justify relief.’ Plaintiff has failed to establish any excuse for the inadvertence (if any existed) of its counsel. In fact, counsel’s conduct would seem to constitute neglect rather than inadvertence. In any event, neither inadvertence nor neglect will warrant judicial relief unless it may reasonably be classified as excusable upon a sufficient showing.
From the foregoing it is apparent that the circumstances surrounding the actions of plaintiff’s counsel at the first hearing are not such as would require this court to rule that the trial court abused its discretion in denying relief under section 473.
Plaintiff’s final argument is apparently that the trial court abused its discretion in denying the motion to vacate because it appeared that a conclusive defense to the dismissal existed. At the hearing on the motion to vacate, Bush was called upon to testify and admitted that he probably had been out of the state for a total of at least one month between December 15, 1952, and December 1, 1955. Plaintiff asserts that this testimony establishes conclusively the existence of the absence-from-the-state defense to dismissal under section 581a. Assuming this is true, plaintiff is still not entitled to relief under section 473. In effect the situation was that plaintiff’s counsel had two possible defenses to Bush’s motion but presented only one of them. Having been unsuccessful with the one defense, plaintiff now seeks to assert the second. This it may not do since it has not made a sufficient showing of a legal excuse for not presenting this defense at the January 12 hearing. The trial court has ruled against plaintiff and we are convinced that such ruling did not constitute an abuse of discretion.
The orders are affirmed.
Louge Testimony Strengthens Case of Prosecution
