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Kenney v. Kelleher

C. A. KENNEY v. DANIEL KELLEHER

Kenney v. Kelleher, 63 Cal. 442 (1883)
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Court
California Supreme Court · State Highest Courts
Decided
May 30, 1883
Citations
63 Cal. 4421883 Cal. LEXIS 489
Cited by 15
Headnotes
Practice—Benewal of Motions__Leave to renew a motion maybe given after the original motion is denied, and the granting or refusal of leave is within the legal discretion of the court, and will not be interfered with except in case of abuse; and it is not an abuse to grant leave upon the same facts more fully stated. Id.—Leave to Benew mat re Granted at Chambers.—The judge may at chambers grant leave to renew the motion.
Summary
Appeal from an order of the Superior Court of the city and county of San Francisco vacating and setting aside a default and judgment. Judgment by default was entered against the defendant Catharine Kelleher, and she moved the court to set aside the default and judgment, which motion the court denied. Subsequently she renewed the motion, and the following order was written upon the notice of motion: “ Good cause being shown therefor, on motion of Sullivan and Severance, attorneys for defendant Mrs, C. Kelleher, it is ordered that the time of service be shortened, and that the motion therein specified be heard at the time and place therein named, April 27th, 1880. “M. A. Edmonds, Judge.” This order was made at chambers. The court granted the motion and set aside the default and judgment with leave to answer, and the plaintiff appealed from the order.

Syllabus and headnotes are prepared by the reporter or publisher, not the court, and are not part of the opinion.

Opinion of the Court

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Per Curiam.

Leave to renew a motion may be given after the original motion is denied, and when given may be acted upon. In this case there must necessarily have been an application to the court for leave to renew the motion, and the application must have been granted. This is evident from the fact that the court entertained the motion for an order to show cause, and afterward, when the principal motion came on to be heard, entertained and granted it against the objections of the opposite party. (Bowers v. Cherokee Bob, 46 Cal. 286 .)

It is insisted that leave to renew can only be granted by the court, and not by a judge in chambers. But a judge of the Superior Court may, at chambers, grant all orders which are usually granted upon ex parte application. (Code Civ. Proc. § 166.) Orders to show cause are made ex parte. The final order was made by the court. It was said in Ford v. Doyle, 44 Cal. 635 , that the doctrine of res adjudicata, in its strict sense, does not apply to motions made in the course of practice, and the court may, upon a proper showing, allow a renewal of a motion once decided. It is added that this leave will rarely be granted unless it appears that a new state of facts has arisen since the former hearing, or that the then existing facts were not presented by reason of surprise or excusable neglect.

But this is not a determination that leave may never be granted upon the same facts more fully stated. The granting or refusing of leave to renew the motion is within the legal discretion of the court, which we ought not to interfere with except in case of abuse.

Ho point is made by appellants as to the sufficiency of the affidavit of the defendant as an “affidavit of merits.”

*445 Upon the affidavits and proffered answer of the applicant we cannot say the court below erred in granting the motion to set aside the default judgment.

The portions of the testimony objected to were not entirely irrelevant.

Order appealed from affirmed.

How later courts describe this case

No later court has written an explanatory parenthetical about this case yet.

Cited by 15 cases

View all citing references →
1886–1887: 11894–1895: 11910–1911: 11912–1913: 11914–1915: 11932–1933: 11940–1941: 11950–1951: 21954–1955: 11956–1957: 11962–1963: 11968–1969: 11978–1979: 11986–1987: 118862026peak 1950 · 2

Relies on it most ⓘ

  1. Rambush v. Rambush267 Cal. App. 2d 734 (1968)
  2. Tiffany Productions of California, Inc. v. Superior Court22 P.2d 275 (Cal. Ct. App. 1933)
  3. Harth v. Ten Eyck108 P.2d 675 (Cal. 1941)
  4. Enderlin State Bank v. Jennings26 L.R.A. 593 (N.D. 1894)
  5. Lopez v. Larson91 Cal. App. 3d 383 (1979)
  6. Key System Transit Lines v. Superior Court222 P.2d 867 (Cal. 1950)

Most recent

  1. Film Packages, Inc. v. Brandywine Film Productions, Ltd.193 Cal. App. 3d 824 (1987)
  2. Lopez v. Larson91 Cal. App. 3d 383 (1979)
  3. Rambush v. Rambush267 Cal. App. 2d 734 (1968)
  4. Lynch v. Betts198 Cal. App. 2d 755 (1962)
  5. Corcoran v. City of Los Angeles315 P.2d 439 (Cal. Ct. App. 1957)
  6. JI Case Company v. McDonald280 P.2d 1070 (Idaho 1955)

Citing references are not a citator: they show that a later opinion cites this case, not whether it followed, distinguished, or overruled it. Check negative history before relying on this case.

Authorities cited 2

DepthCaseCited by
Ford v. Doyle, 44 Cal. 635 (1872) 20
Bowers v. Bob, 46 Cal. 279 (1873) 11

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