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STUART v. ALEXANDER et al.
Plaintiff brought this action in Ventura county and served Claire H. Alexander on December 2 in Alameda county. On January 2 plaintiff directed the clerk to enter default of said defendant, which was done. Judgment was entered the same day. On January 4 defendant filed a demurrer, which came on for hearing January 15, and was then objected to by plaintiff because of default judgment theretofore entered. The court, of its own motion, set aside the default on the ground that it had been prematurely entered, in that defendant had the whole day of January 2 within which to appear, because the day prior thereto, January 1, was a legal holiday.
Appellant concedes that the default and judgment were prematurely entered, and that if motion for relief had been made by defendants under section 473 of the Code of Civil Procedure the court would have had jurisdiction to set aside the default, but contends that the court was powerless to thus act because of absence of such a motion. The court had jurisdiction of the cause and the parties, and if it chose to exercise its discretion to correct the error of the clerk in performing a ministerial act (which error we observe was induced by the very party who now seeks to profit by it), it had the inherent power to do so; and we are unable to say that it was an abuse of discretion to thus act, notwithstanding a formal motion directed to that specific matter had not been made by the party aggrieved.
Order affirmed.
SCOTT, Justice pro tem.
We concur: STEPHENS, P. J.; CRAIL, J.
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Docket No: Civ. 9797.
Decided: April 05, 1935
Court: District Court of Appeal, Second District, Division 2, California.
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