majority">Morrison, C. J.:

Plaintiffs brought their action against defendant to recover the sum of one thousand two hundred and thirty-one dollars for goods, wares and merchandise sold and delivered. The complaint was answered in due time, and the case was put on the calendar for trial. When the calendar was called, the defendant’s attorney was not in attendance, but the attorney for the plaintiffs being present, stated to the Court that a jury trial was waived, whereupon the case was put on the equity calendar for trial. Of this fact neither the defendant nor his attorney had any notice; but both supposed that the case was on the jury calendar. The consequence was that the case was tried in the absence of defendant’s attorney, and judgment was rendered in favor of plaintiffs for the full amount claimed. Defendant thereupon gave notice of a motion to set aside the judgment, and accompanied his motion with affidavits of merits and surprise. The Court denied the motion because the notice did not state the grounds upon which the motion to set aside the judgment would be made. Defendant thereupon asked leave to amend his notice of motion, but leave was denied.

The case properly belonged on the jury calendar, and the right to a jury trial was not waived by the defendant. The action, was a common law action and the right of trial by jury existed unless it was waived; first, by failing to appear at the trial, second, by written consent in person or by attorneyfiled *366with the Clerk, or, third, by oral consent in open Court, entered in the minutes. (Sec. 631, C. C. P.)

In the case before us, there was no waiver in any one of the modes prescribed by the Code. If the case had been put on the jury calendar where it properly belonged, and if, when called on that calendar for trial, the defendant had failed to appear, there would have been a waiver of the right of trial by jury; but the failure of the defendant to appear when the case was called on the equity calendar, did not operate as a waiver, for the simple reason that the case was improperly on the equity calendar, and should not have been there. Neither the defendant nor his attorney was chargeable with laches in failing to notice the business on the equity calendar, as neither had any notice whatever that the case was there for trial. It seems that the Court denied the motion to vacate the judgment “for the reason that the notice of said motion did not specify the grounds upon which the same would be made.” We infer from the language of the order that, there is a rule of the Superior Court requiring such a notice to contain a statement of the grounds upon which the motion is made, and assuming that the motion was properly denied, because the notice was insufficient, we think it was the duty of the Court to allow defendant’s motion for leave to amend his notice, so as to make it conform to the rule of the Court. There is no doubt that the plaintiff’s attorney knew, and the Court also knew, upon what grounds defendant moved, because there was attached to the notice an affidavit in which the grounds were fully stated. The Code (Sec. 473, C. C. P), is very liberal on the subject of amendments, and the recent decisions of this Court have been in full accord with the spirit of the Code.

We are of the opinion that the defendant should have been allowed to amend his notice of motion, and that the Court erred in denying his motion for leave to amend.

The order is therefore reversed.

Myrick, J., concurred.

Sbarpstein, J.:

I concur. It seems to me that the appellant made a show*367ing, upon which he was entitled to have the judgment vacated, and the only ground assigned by the Court for not granting the motion was that the notice of motion did not specify the grounds upon which it would be made; and the respondents in their brief cite a rule of the Superior Court, which requires that the grounds of the motion shall be stated in the notice. But I am unable to find in the record any evidence of the existence of such a rule, and this Court does not take judicial notice of the rules of the Superior Court. (Cutter v. Caruthers, 48 Cal. 178; Warden v. Mendocino Co., 32 Cal. 655.)

Citation profile

Relationships

How this case has been treated — in progress