against any claim the plaintiff might make herein against the defendant for any sums due to said Kagi under the said contract, and that under said understanding and agreement the said defendant paid to the Cowells the said sum of $1,157.79, due and payable to said Kagi under his contract with the defendant; that the summons and copy of the complaint in this action were served upon the affiant as the president of the defendant, as above stated, on the thirtyfirst day of January, 1922, and that, acting upon the understanding and agreement with the Cowells that the latter would protect and defend the defendant in any suit or action brought by the plaintiff against the defendant to recover the said sum of $1,157.79, he forwarded said summons and complaint to W. H. George, the general manager and attorney in fact of the Cowells; that affiant believed that said Cowells would proceed to answer the said complaint and defend the said action; that the defendant, under the terms of the contract with Kagi, was justly indebted to the latter in the sum of $1,157.79 and no more, "excepting that it was clearly understood and agreed that the same should be paid to the said S. H. Cowell, Isabella M. Cowell and Helen E. Cowell as security for any moneys due from S. Kagi to the said" Cowells; "that affiant is informed and believes and, therefore, alleges that judgment has been entered against said defendant for more than double the amount which would be justly due to the said S. Kagi under any circum

The affidavit of W. H. George, above referred to, declares that the land upon which the seeds were grown was leased to S. Kagi by the Cowells above named; that Kagi made, executed, and delivered to the Cowells a chattel mortgage on all growing crops to be raised on said land for the season, December 1, 1920, to December 1, 1921, except those raised under contract with the said defendant; that the Cowells had an understanding and agreement with Kagi and the defendant that the chattel mortgage should not cover the seeds raised under the contract between Kagi and the defendant "for the reason that the said PietersWheeler Seed Company was unwilling to make the necessary advances for planting, cultivating, and harvesting the said seed crop if the same were covered by a chattel mortgage," and that there was a further understanding

and agreement between Kagi, the defendant, and the Cowells that there should be and there was assigned to the Cowells all the proceeds and profits of the said seed crops over and above the advances made by the defendant, to be applied by the Cowells "upon the payment of the said sums due from the said Kagi to the said S. H. Cowell, Isabella M. Cowell and Helen E. Cowell"; that at or about the time of harvest in the year 1921 Kagi absconded and disappeared and abandoned the said land and the seed crops thereon and did not pay the rent of said land or the other sums due the Cowells and that said Cowells commenced a suit in the superior court of the city and county of San Francisco to foreclose the said chattel mortgage; that the value of the property covered by said mortgage is wholly insufficient to pay the sums due the said Cowells and that said Kagi is utterly insolvent and has no property of any kind or character whatsoever; that in accordance with the understanding and agreement with the said Cowells, the said Kagi and the said defendant, the last named accounted to the said. Cowells and paid to them the sum of $1,157.79, which was all that was due the said Kagi under the agreement with the defendant for the raising of said seed; that on or about the twentieth day of January, 1922, the present action was commenced and copy of the complaint served upon the defendant in the city of Gilroy, county of Santa Clara, on the thirty-first day of January, 1922; that affiant, as manager of the Cowells, agreed with the defendant to defend and protect it against the claim of the plaintiff, I. Sofuye, and in accordance with said agreement the defendant forwarded the summons and copy of the complaint to the affiant in the city of San Francisco, "but the affiant believed that the whole matter was covered in the suit to foreclose the said chattel mortgage and neglected to take the matter up with his attorney, whereupon the said plaintiff has entered the default of said defendant and obtained judgment thereon, as affiant is informed and believes, for a sum more than double the amount which could have been, by any possibility, due to the said S. Kagi"; that affiant has fully and fairly stated the facts of the case to his attorney and is informed by the said attorney and, therefore, states that the Cowells have a claim to the moneys due from the

said defendant prior to and superior to the claim of the said I. Sofuye.

No counter-affidavit was filed or any showing otherwise made in rebuttal of the salient facts set forth in the foregoing affidavits. One of the attorneys for the appellant did make and file an affidavit, which, however, contains nothing which affects or bears upon the question to be determined upon this appeal.

[1] It cannot justly be declared, upon the record as it is presented here, that the action of the court below in granting the relief asked for by the defendant involved

error.

An application for relief under section 473 of the Code of Civil Procedure from the consequences of a default judgment is addressed to the sound judicial discretion of the court to which such application is made; and, unless it can be said from the face of the record on appeal that, in granting or disallowing such a motion, the nisi prius court has abused the discretion committed to it in disposing of such a proceeding, the order will not be disturbed on appeal.

[2] It has for many years uniformly been held in this state that the power vested in trial courts by section 473 should be freely and liberally exercised by said courts to the end that they might "make and direct their proceedings so as to dispose of cases upon their substantial merits, and without unreasonable delay, regarding mere technicalities as obstacles to be avoided rather than principles to which effect is to be given in derogation of substantial rights." (Roland v. Kreyenhagen, 18 Cal. 455; Brasher v. White, 53 Cal. App. 545 [200 Pac. 657, 661].)

In Nicoll v. Weldon, 130 Cal. 667 [63 Pac. 64], it is said: "Section 473. . . is a remedial provision, and is to be liberally construed so as to dispose of cases upon their substantial merits and give to the party claiming in good faith to have a substantial defense to the action an opportunity to present it. (Buell v. Emerich, 85 Cal. 116 [24 Pac. 644]; Harbaugh v. Honey Lake etc. Water Co., 109 Cal. 70 [41 Pac. 792]; Melde v. Reynolds, 129 Cal. 308 [61 Pac. 932].) It is for this reason that we more readily listen to an appeal from an order refusing to set aside a default, than where the motion has been granted, since in such case the defendant may be deprived of a substantial

right, whereas it may be assumed, if nothing to the contrary is shown, that the plaintiff will be able at any time to establish his cause of action. If, for any reason, he will be unable to do so, that fact should be made to appear; but if he is merely subjected to delay or inconvenience by having the default set aside, he can be compensated therefor by the terms which the court will impose as the condition of granting the motion.'

In Berri v. Rogero, 168 Cal. 736 [145 Pac. 95], the rule enunciated by section 473, where that section has been successfully invoked in a proceeding involving the application to be relieved from a default judgment, is admirably expounded by Chief Justice Sullivan, as follows: "The law does not favor snap judgments. The policy of the law is to have every litigated case tried upon its merits, and it looks with disfavor upon a party who, regardless of the merits of his case, attempts to take advantage of the mistake, surprise, inadvertence, or neglect of his adversary. Where a party in default makes seasonable application: to be relieved therefrom, and files an affidavit of merits alleging a good defense, and the plaintiff files no counteraffidavit and makes no showing that he has suffered any prejudice or that injustice will result from the trial of the case upon its merits, very slight evidence will be required to justify a court in setting aside the default. A broad discretion is allowed to courts in granting relief against default and it is in cases only where the lower court has abused its discretion that the appellate court will reverse its action. Counsel for appellant and respondents in their briefs agree, and this court agrees with them, that the following is a correct statement of the rule applicable to courts in dealing with defaults: 'It is largely a matter of discretion, to be liberally exercised by the court in the furtherance of justice, and where the action of the trial court will result in a trial upon the merits, the appellate courts are very reluctant to interfere with the exercise of such discretion, and will do so only where it clearly appears that there has been a plain abuse of discretion.'"

It is said in Vinson v. Los Angeles Pac. R. R. Co., 147 Cal. 479, 483 [82 Pac. 53], that, where the trial court has granted or refused to grant an application for the setting aside of a default judgment, an appellate court will not

interfere with the exercise of the discretion of the court below, "except in a case where a clear abuse of discretion is apparent. Particularly is this so where the discretion is exercised in favor of the granting of the relief sought, as such action tends to bring about a conclusion on the merits, which is always to be desired. (O'Brien v. Leach, 139 Cal. 220 [96 Am. St. Rep. 105, 72 Pac. 1004].) It has been said by this court that where the circumstances are such as to lead the court to hesitate in such a matter, it is better, as a general rule, that the doubt should be resolved in favor of the application. (Watson v. San Francisco &

Humboldt Bay R. R. Co., 41 Cal. 17.)"

1. It cannot be doubted that, under the circumstances, the defendant in this case proceeded within a reasonable time after the default was entered to take the necessary legal steps for securing an order setting aside the default judgment. The affidavit of W. H. George was filed eight days after the entry of judgment, and while this affidavit was not, when filed, intended as in furtherance of a motion to set aside the default, no such motion then having been filed, its purpose was, nevertheless, to secure a nullification of the default judgment and, as seen, was used in support of the motion subsequently made. The motion was filed nineteen days after the default judgment was entered. One of the attorneys for the plaintiff addressed a letter at Stockton under date of March 18, 1922, to the defendant's manager at Gilroy in Santa Clara County, in which he notified the defendant of the entry of the judgment "on the sixteenth day of March, 1922, in the sum of $2,215.94,” and it may safely be assumed that this letter was not received by the defendant's manager at Gilroy until the 20th or 21st of March.

[3] 2. The neglect of the defendant to answer the complaint within the time required by law was, as we have seen, due to the fact that the defendant had paid to the Cowells the sum of $1,157.79 which was coming to Kagi from the defendant upon an agreement beteen the defendant and the Cowells that the latter would protect and defend the defendant against any action which the plaintiff, as assignee of Kagi, might bring against the defendant to recover the amount so paid to the Cowells. While it was, as a matter of law, the duty of the defendant to have an