The herald., 1896-01-07
IS NOT ENTITLED TO RELIEF
The Case of Alfred Moore VS..
City of Los Angeles
AN OPINION BY JUDGE YORK
The Term Trial Calendar Called by
Judges in Bank
An Order Made by the Judges for Drawing the
AN OPINION BY JUDGE YORK
An Order Made by the Judges for Drawing the
Grand and Term Trial Jurors-0en-
eral Court Notes

Judge York yesterday gave an opinion in
the case of Alfred Moore vs. the city of
Los Angeles, denying the motion of the
plaintiff that he be relieved from default,
and definitely settling the case. The opin-
ion is brief one and is as follows:
The plaintiff moves the court to relieve
him from his failure to deliver proposed
statement, with proposed amendments
thereto, on motion for a new trial. to the
clerk OF this court, in accordance with his
notice that he would deliver the same on
August 10, 1895, on the ground that said
FAILURE was through his mistake, inadvert-
ence, surprise or eXcusable neglect.
The court has passed upon the matters
involved herein on a previous occasion, and
at that time held that if the court had the
power to relieve the plaintiff from the ef-
fect OF non-compliance with the statutory
requirement for the presenting of the pro-
posed statement and proposed amend
ments thereto to the clerk for the judge
within the statutory limitation, it could
not be done in this case on the evidence
weighed according to established rules;
that the burden was on the plaintiff to
prove the waiver of presentation alleged to
have been made by the attorney for tine de-
fendant; and that, inasmuch as the evil
dence upon that point was radically con-
tiiciing and did not preponderate in favor
vi tue pldlUtlIl cCulu IOt Us re-
lieved from his default. This motion is
made after obtaining leave of the court to
review the action of the court in denying
the plaintiff relief on the former hearing.
The affidavts used on the former hear
ing and upon this hearing having been
carefully reviewed by the court. and the
evidence having been weighed, as upon the
prior occasion, it appears to the court that
the defendants attorney did not in any way
consent that the said proposed statement
and amendments thereto might be present.
ed to the clerk at any other time than that
Indicated in the notice served by The
plaintiff upon defendant, to-wit: the 10Th
day of August, 1895; that the attorney for
the defendant did not make the state
ments to the attorney for the plaintiff as
stated in the affidavit flied in support of
The motion by the plaintiffs attorney, or
any statements that would in any way
have tendency to mislead the attorney
for the plaintiff in regard to the time of the
presenting of said statement ana proposed
amendments, or in any other respect. 80
finding how can the court say that there
was either mistake, inadvertence, surprise
or excusable neglect on the part of plaint-
ills attorney which the court can take into
consideration and make the basis for its
action in relieving tho plaintiff from his
does undoubtedly believe the statements
which he has made in his affidavit they
are positively denied by equally reliable
testimony, and therefore the court
can not find either that the
facts upon which he relies to
relieve his client from the default existed,
or that he had reason to believe that they
existed. A mistake or inadvertence must
have substantial basis, and such one as
the courts can in all cases consider as the
foundation OF their action. A rule cannot
be established for one case which cannot
be made applicable to other cases. If the
plaintiff in this case, without establishing
the facts upon which he relies to justify his
belief of stipula ion which did not exist,
can prevail, the law would in effect be
made mugatory, for similar showing
could be made in nearly every case where
party finds himself in default. Although
regretting that the plaintiff is obstructed in
obtaining a review of the trial in his case.
the court cannot relieve the party from
the position into which he has
fallen by reason of Noncompliance with
The law apd of the rules of this court. 1t is
therefore ordered that the plaintiffs motion
to be relieved from default be, and the
game hereby is, denied.