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District Court of Appeal, First District, Division 1, California.

CUMBERPATCH et al. v. NOLAN et al.

No. 15909.

Decided: June 16, 1954

Lorne M. Stanley, San Francisco, for plaintiffs. Leonard A. Thomas, San Rafael, for respondents.

In respondents' petition for rehearing, respondents claim that the minute order of July 11, 1952, constitutes a setting aside of the default as distinguished from the defeault judgment. The minute order erroneouly recites ‘This matter coming on upon a motion to set aside default * * * It was by the Court ordered that the motion to set aside default be granted * * *.’ Both the notice of motion and the motion itself were to set aside the default judgment, not the default. Moreover, the formal order on the motion signed by the judge properly shows that the motion and the order were restricted to setting aside the judgment. The statement in the opinion that the default at no time was set aside is correct.

The opinion is modified by adding thereto, at the end thereof, the following: ‘Plaintiffs and appellants will recover costs.’

The petition for rehearing is denied.


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