![]() ![]() The affidavit filed by appellant's attorney in support of the motion alleged that the matter was set for trial on Apthat thereafter it was continued until May 23d that a motion to preclude evidence was made on May 5, 1958, at which time the case was set for trial on Apthat the court ordered a further bill of particulars which was furnished that on May 23, 1958, the attorney for On May 27, 1958, a motion to vacate the judgment on the grounds provided for in section 473 of the Code of Civil Procedure (inadvertence, mistake, surprise, and excusable neglect) was made. The court then ordered that the default of the appellant be entered and judgment was entered in favor of respondent. No appearance was made for the appellant. ![]() On May 23, 1958, the cause was called for trial. A third bill of particulars was furnished respondent. The order dated May 9, 1958, provided in part: "This case is now set for trial on April 23d at 2:00 P.M." The court denied the motion to preclude evidence subject to the appellant furnishing the additional bill of particulars. The court held that the bill of particulars was insufficient and another bill of particulars was ordered. Again respondent asked that appellant be precluded from giving evidence. Respondent objected to the bill claiming that the bill was inadequate, particularly as to seven of the items. This listed 10 separate items on which the claim was based. The court held the bill of particulars to be insufficient but denied the motion to preclude evidence contingent upon the respondent being furnished a proper bill of particulars "setting forth all items of the account upon which his complaint is based in such manner that defendant can properly prepare for trial." At this time the trial date was continued to 2 p.m., Friday, May 23, 1958.Ī second bill of particulars was filed. Thereafter a motion to preclude evidence was made by the respondent. A bill was finally furnished 16 months after the demand was made. After the complaint was filed respondent made a demand for a bill of particulars. Slack brought an action in the form of a common count against the administratrix to recover the sum of $40,074.24 for services allegedly performed at the special instance and request of the decedent. Of the respondent, Isabel Murray, as administratrix of the estate of Daniel Joseph Flanigan, after the trial court ordered appellant's action dismissed when he and his attorney failed to appear in court at the time set for the trial of the action.įred M. This is an appeal from an order denying a motion to vacate a judgment which was entered in favor ![]()
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