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In order to justify the vacating of a judgment and the setting aside of a default, the party claiming to be thus aggrieved must show excusable neglect or present a reasonable excuse for his default. (Shearman v. Jorgenson, 106 Cal. 483, [39 Pac. 863]; Edwards v. Hellings, 103 Cal. 204, [37 Pac. 218]; Hein v. Treadwell, 72 Cal. 217, [13 Pac. 503]; Reilly v. Ruddock, 41 Cal. 312.)

As is said in Shearman v. Jorgenson, 106 Cal. 483, [39 Pac. 863], "it is only in exceptional cases that orders of this kind will be reversed by this court." But the facts here do not bring this case within the exception. One of the attorneys of the defendant was certainly aware of the extension of ten days granted by the court to the defendant to answer the complaint, and the fact that said attorney failed to make a note of that order of the court on the office calendar of the law firm of which he was a member, and that by reason thereof his partner failed to become apprised of such order, is no reason at all for excusing their default. In other words, we fail to see the force of the argument that the plaintiff should be compelled to suffer the consequences of the neglect of Mr. Kimball to give his partner timely information of the order made by the court granting them additional time in which to file an answer. It is not denied that Mr. Braynard knew that the thirty days' time allowed the defendant for answering the complaint granted by the court upon overruling the demurrer would expire on the thirty-first day of August, 1908, and that he must have believed that, so far as he was advised, the plaintiff would be entitled to a default judgment after the expiration of that time. Personally, he made no effort to secure further time beyond the thirty days originally granted to his client, and knew nothing of the order allowing additional time until the return of his partner to Redding and after the additional time secured by the latter had expired. We do not think that proper or any diligence was shown by the defendant in the matter. To the contrary, it would rather appear that, having suffered two defaults to be entered against him, he was inexcusably negligent. The entry of the default and judgment in the first instance ought to have been sufficient to put the defendant on his guard so that he would have avoided a repetition of the same difficulty. As stated, the facts do not justify interference with the ruling of the court below on the order appealed from.

The fact that the appellant, after the second default and judgment were entered, served upon the attorneys for the plaintiff an answer, of which "due service" was admitted by said last-mentioned attorneys, furnished no reason for allowing the motion. The alleged answer was served on the plaintiff's attorneys on February 18, 1909, after the denial of the first motion to set aside the judgment and default, but prior to the hearing of the second motion for the same purpose. The case had gone to judgment, and certainly, after that event, an answer or other pleading could avail nothing to the party offering it. Particularly is this true here since it is manifest that, under the terms of section 182 of the Code of Civil Procedure, the defendant was, so far as the facts disclosed here show, without authority or right to institute the second motion. That section provides that, save in cases where motions are refused for informality in the papers or proceedings necessary to obtain the order, or to motions refused with liberty to renew the same, an application for an order made to a judge of a court in which the action or proceeding is pending is refused in whole or in part, or is granted conditionally, no subsequent application for the same order shall be made to any court commissioner, or any other judge, except of a higher court. There is no showing here that the first motion was refused because of "informality in the papers or proceedings necessary to obtain the order," nor does it appear that liberty to renew the motion was granted. For the foregoing reasons, the judgment and order appealed from are affirmed.

Chipman, P. J., and Burnett, J., concurred.

[Civ. No. 652. Third Appellate District.-October 18, 1909.] VICTOR POWER AND MINING COMPANY, a Corporation, Respondent, v. G. ZERR, Appellant.

EJECTMENT-PLEADING-REFUSAL TO VACATE JUDGMENT BY DEFAULTNEGLIGENCE OF ATTORNEY.-The facts and the law appearing to be the same in this case as in case No. 651, ante, p. 497, the judgment and order appealed from are affirmed on the authority of that

case.

APPEAL from a judgment of the Superior Court of Tehama County, and from an order refusing to vacate a default, and judgment by default. Wm. M. Finch, Judge presiding.

The facts appearing in the record as to the negligence of the attorney for the defendant appealing are the same as those which appear in case No. 651, ante, p. 497, on the second motion to set aside the default judgment in that case.

Braynard & Kimball, for Appellant.

W. F. Aram, and P. H. Coffman, for Respondent.

HART, J.-This is an action, ejectment in form, and the appeal is from the judgment and an order refusing to grant the motion of the defendant to set aside the default entered against him for failure to answer the complaint within the time allowed by the court upon overruling the demurrer to said complaint and to vacate the judgment entered upon said. default.

The facts and the law pertinent thereto are, confessedly, similar to those in the case of the plaintiff herein against C. L. Cole-No. 651, ante, p. 497, [105 Pac. 758]—an opinion in which has this day been filed.

It therefore follows that, upon the authority of said case No. 651, the judgment and the order appealed from herein must be affirmed, and such is the order.

Chipman, P. J., and Burnett, J., concurred.

[Civ. No. 653. Third Appellate District.-October 18, 1909.] VICTOR POWER AND MINING COMPANY, a Corpora tion, Respondent, v. MANUEL ALVARES, Appellant. EJECTMENT PLEADING-REFUSAL TO VACATE JUDGMENT BY DEFAULT NEGLIGENCE OF ATTORNEY.-The facts and the law appearing to be the same in this case as in case No. 651, ante, p. 497, the judgment and order appealed from are affirmed on the authority of that

case.

APPEAL from a judgment of the Superior Court of Shasta County, and from an order refusing to vacate a default and judgment by default. Wm. M. Finch, Judge presiding.

The facts appearing on the record in this case as respects the negligence of the attorney for the defendant appealing are the same as in the second motion to set aside the judgment by default in case No. 651, ante, p. 497.

Braynard & Kimball, for Appellant.

W. F. Aram, and P. H. Coffman, for Respondent.

HART, J.-This is an appeal from the judgment and an order denying defendant's motion to set aside the default for failure to answer the complaint and to vacate the judgment thereupon entered against the appellant.

The facts and the law applicable thereto are admittedly the same as those in the case of Victor Power and Mining Co. v. Cole-No. 651, ante, p. 497, [105 Pac. 758]-this day decided. Therefore, upon the authority of said case, the judgment and the order herein appealed from are affirmed.

Chipman, P. J., and Burnett, J., concurred.

[Civ. No. 648. Third Appellate District.-October 18, 1909.]

F. H. GREEN et al., Appellants, v. JAMES GAVIN et al., Respondents.

MINING CLAIMS-LOCATION-DEPARTURE FROM USUAL ORDER OF PROCEDURE COMPLETION. PRIOR TO ADVERSE CLAIM.-It is universally held that where every act necessary to complete the location of a mining claim has been done before an adverse claim has accrued, the order in which such acts have been performed is immaterial; and any departure from the usual order is entirely without prejudice to anyone, and could not inure to the benefit of subsequent locators.

ID.-NOTICE POSTED OFF CLAIM-RECORD-MARKING OF BOUNDARIESSECOND NOTICE POSTED ON CLAIM-DEVELOPMENT ADVERSE LOCATION. Where, after the discovery of a mining claim, the notice of location was posted on a tree supposed to be on the claim, and was duly recorded the following day, and the boundaries were sufficiently marked on the ground, after which it was discovered that by mistake it was outside of the location, whereupon a new copy of the location notice was posted on the ground, and after such completed location development work was in full progress when an adverse location was made, the circumstance that there was no new record of the subsequent location, and that the record made preceded the same is immaterial, as against such locators.

ID.-SUFFICIENCY OF CONSTRUCTIVE NOTICE BY RECORD CUSTOMARY NOTICE. As far as the constructive notice required by the custom of miners is concerned, it had been fully given, and its object accomplished before the second notice was posted. Neither the law nor custom requires an idle act. ID.-POSTED AND RECORDED NOTICES-IDENTITY-OMISSION OF NAME OF WITNESS IN SECOND POSTING.-The posted and recorded notices are only required to be substantially identical. The circumstance that the notice first posted and the record thereof bore the name of a witness, and that the second notice posted omitted such name, is entirely immaterial.

ID.-ALLOWANCE OF AMENDMENT TO ANSWER TO SET UP FIRST IN

EFFECTUAL POSTING AND SUBSEQUENT POSTING.-The allowance of an amendment at the trial to set up the facts as to the first ineffectual posting and as to the subsequent posting on the claim could not have injured the appellant.

ID. DISCRETION AS TO AMENDMENTS-LIBERAL EXERCISE.-The rule is well settled that the court should liberally exercise its discretion in allowing amendments so that the cause may be determined upon its merits.

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