10 Cal.App. 5
100 P. 1079
CALIFORNIA CASKET CO.
v.
McGINN et al.
Supreme Court of California.
April 6, 1909
[Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] In Bank.
For former report, see 100 P. 1077.
[Ed. Note.— For other cases, see Judgment, Cent. Dig. ss 300-304; Dec. Dig. s 153.*]
* For other cases see same topic and section NUMBER in Dec. & Am. Digs. 1907 to date, & Reporter Indexes
PER CURIAM.
The petition for rehearing in this court after judgment by the District Court of Appeal is denied.
The opinion of the District Court of Appeal reversing the order of the superior court is based upon two grounds: First, that the defendants had been guilty of laches in making their motion to vacate the default, and that the motion should have been denied on this ground; second, that their application should have been accompanied by an affidavit of merits. We are satisfied that the first of these positions is well taken. We do not express any opinion upon the other question discussed by the District Court of Appeal, [100 P. 1080] i. e., whether an affidavit of merits is required to accompany a motion to vacate a default where the ground of the motion is that the default was entered before the expiration of the time allowed by law to the defendant in which to appear and plead.