I dissent.
The majority of this court has again seen fit to usurp the function and power of the trial court in the exercise of a discretion exclusively committed to the latter court by the statutory law of this state as construed in a legion of court decisions.
It is indeed unfortunate that this court should at this time render a decision such as this, designed to inspire and encourage appeals from all discretionary orders and decisions of trial courts regardless of merit. It has almost reached a point where a majority of this court has adopted the policy of substituting its own discretion for that reposed by statute in the trial court. Manifestly, in this field, no rule or standard can be established as a yardstick to guide the trial judge in the exercise of his discretion. No two cases are exactly alike. Each case has its distinguishing features. Trial judges are presumed to be intelligent, honest, and fair-minded individuals. They have a grave responsibility in cases of this character. The statute has reposed in them an exceptionally broad power. The power to grant relief from default. The statute has fixed the limit of that power. Within that limit it must be exercised wisely, reasonably and fairly, with the view of advancing the administration of justice. All this a trial judge is presumed to have done when he exercises his discretion in ruling on an application for relief from default under section 473 of the Code of Civil Procedure. The ruling comes before an appellate court fortified with this presumption. The duty of the appellate court is to give full effect to this presumption. The question to be determined by the appellate court is not what it would have done had it been sitting in the place of the trial judge, but whether from the record it can be said that the trial judge failed to act wisely, reasonably and fairly in view of what was presented to him in support of the application. If such failure does not clearly and unmistakably appear, it cannot be said *534that the trial judge abused his discretion, and his decision should be affirmed.
What does the record disclose in the case at bar? The majority opinion concedes that the showing of mistake, inadvertence, surprise, or excusable neglect was adequate to justify the order relieving the defendant from its default. But the majority assert that the application was not timely made and reverse the order granting relief on this ground.
While I concede that application for relief from default under section 473 of the Code of Civil Procedure must be timely made, the determination of this issue is also within the discretion of the trial judge, and the same considerations are involved as in the determination of any other issue arising on the hearing of such an application. Said section provides that such application “must be made within a reasonable time, and in no case exceeding six months, after the judgment, order, or proceeding was taken.” However, what is a reasonable time must depend somewhat upon the circumstances of each particular case, and is not definitely determined further than that it will not extend beyond the maximum period allowed by the terms of the statute. (14 Cal.Jur., § 110, p. 1065; Consolidated Construction Co. v. Pacific Electric Ry. Co., 184 Cal. 244, 247-248 [193 P. 238]; People v. Temple, 103 Cal. 447, 453 [37 P. 414]; In re Dahnke, 64 Cal.App. 555, 561 [222 P. 381].) In other words, while the statutory six-month limitation is “the standard or criterion in all cases” (Smith v. Jones, 174 Cal. 513, 516 [163 P. 890]; see, also, Hollywood Garment Corp. v. J. Beckerman, Inc., 61 Cal.App.2d 658, 661 [143 P.2d 738]), the applicant in seeking relief within that period must also not be guilty of laches. (Glougie v. Glougie, 174 Cal. 126, 131 [162 P. 118]; see, also, Freeman on Judgments (5th ed.), vol. I, § 270, p. 537.) In legal significance, laches is not mere delay, but delay that works a disadvantage of another. (10 Cal.Jur., § 62, p: 523.) The cases cited by defendant furnish apt illustration of this point of distinction in relation to the trial court’s exercise of discretion in the opening of defaults. For example, in Smith v. Pelton Water Wheel Co., 151 Cal. 394, 397 [90 P. 934], a case cited in the majority opinion, an order refusing to vacate a default judgment was affirmed where there was not only a “delay of nearly four months in the matter of making the application, after full knowledge of the facts, accompanied by the failure to give any intimation to the opposing party of an intention *535to so apply,” but "[t]he evidence was also sufficient to support a conclusion upon the part of the lower court that relief could not be granted to defendant after [the] long delay without injuriously affecting plaintiff’s rights.” (P. 398.)
But “[w]here a delay has been assented to by the other party, or does not appear to have been injurious to his rights, the six months’ limitation prescribed by the code [§473] should be considered as the only limit of reasonable time. In the matter of opening defaults, much is confided to the discretion of the trial court. (Dougherty v. Nevada Bank, 68 Cal. 275 [9 P. 112]; Chamberlin v. County of Del Norte, 77 Cal. 151 [19 P. 271].) And where the circumstances are such as to lead the court to hesitate, it is better to resolve the doubt in favor of the application, so as to secure a trial and judgment upon the merits. (Watson v. S. F. & H. B. R. R. Co., 41 Cal. 17; Cameron v. Carroll, 67 Cal. 500 [8 P. 45]; Lodtman v. Schluter, 71 Cal. 94 [16 P. 540].) ” (Wolff & Co. v. Canadian Pacific Ry. Co., 89 Cal. 332, 337 [26 P. 825].) In accord, see Waite v. Southern Pacific Co., 192 Cal. 467, 471 [221 P. 204].
In the present case a period of over three months elapsed before proceedings were undertaken to open the default herein, although within two days after entry of the default judgment and immediately upon learning of that fact defendant’s president had the process papers forwarded to defendant’s attorney for action. No explanation for this “time lag” was given at the hearing of defendant’s motion, and plaintiffs urge that in view of such unexplained delay the trial court had no basis for setting aside the defendant’s default. But there is no claim that in the presentation of their case plaintiffs have been prejudiced as a result of the delay in the application for the order vacating the default judgment. As above stated, defendant’s verified answer was served with the notice of motion and became a part of the moving papers. (Beard v. Beard, 16 Cal.2d 645, 649 [107 P.2d 385]; Waite v. Southern Pacific Co., 192 Cal. 467, 471 [221 P. 204]; Morgan v. Brothers of Christian Schools, 34 Cal.App.2d 14, 18 [92 P.2d 925].) In deciding the motion, the trial court undoubtedly considered all the facts in the case as shown by the record, including the cause of action set forth in the complaint, the proceedings in applying for judgment, the amount of the judgment in favor of plaintiff, as well as the affidavits filed and the verified answer showing *536“upon its face a good defense on the merits.” (Bonfilio v. Ganger, 60 Cal.App.2d 405, 410 [140 P.2d 861].) While defendant’s attorney, after knowledge of the entry of the default judgment and prompt receipt of the papers served on defendant’s officers, apparently was remiss in the ensuing delay of more than three months before filing the motion for relief, such single consideration does not determine the impropriety of the trial court’s ruling in favor of defendant. Courts are “loath to penalize a litigant on account of some omission on the part of his attorney, particularly where the litigant himself has acted promptly and has relied . . . upon the attorney to protect his rights.” (Stub v. Harrison, 35 Cal.App.2d 685, 689-690 [96 P.2d 979].) Although the showing made in support of defendant’s motion was not in all respects of the strongest character by reason of the unexplained delay in question, yet in view of the entire record, it cannot be said that there were not sufficient grounds for setting aside the default in conformity with the oft-declared policy of the law to favor a trial on the merits. The motion was made well within “the extreme limit of six months allowed by section 473 of the Code of Civil Procedure” and “within a reasonable time” as that limitation has been correlated with the “circumstances of the particular case” (Wolff & Co. v. Canadian Pacific Ry. Co., supra, p. 337), so that the ruling of the trial court may not be classified as an abuse of discretion. As is said in Hecq v. Conner, 203 Cal. 504, at pages 509-510 [265 P. 180]: “It is only in extreme cases that an appellate court will interfere with the action of a trial court in refusing or granting an order of this character . . . ‘Any doubt that may exist should be resolved in favor of the application to the end of securing a trial upon the merits. ’ (Jergins v. Schenck, 162 Cal. 747 [124 P. 426]; Savage v. Smith, 170 Cal. 472 [150 P. 353].) . . . ‘All presumptions will be indulged in favor of the correctness of the court’s action, and the burden in all cases is upon the appellant to make it appear that its discretion was abused in making the order.’ (Moore v. Thompson, 138 Cal. 23, 26 [70 P. 930, 932].)” [Emphasis added.] The cases relied upon by the majority opinion disclose nothing at variance with the legal principles governing appeals of this character, nor is there such similarity of facts as to make the decisions controlling here.
As before stated, by reversing the order of the trial court in this case, the majority has usurped the function and *537power of the trial court. It has placed itself in the roll of the trial judge, and exercised its discretion the same as if it had been sitting in his place. In so doing, it has not performed its duty as a reviewing court by failing to pass on the only question presented, to wit: Did the trial judge abuse his discretion in granting the relief prayed for? Had the majority performed its plain duty as a reviewing court, the order here under review would be affirmed.
Decisions such as this encourage appeals from every order of this character because the determination of the trial court is placed at naught, and the litigant feels he is justified in taking the chance that the discretion of the reviewing court will support his position. Thus, appeals are multiplied and our appellate courts are clogged with cases involving only procedural matters which do not involve the merits of the controversy. Nothing short of a clear and unmistakable abuse of discretion amounting to arbitrary and capricious action on the part of the trial court should be considered as sufficient to justify a reversal in a case of this character, and it is not even intimated in the majority opinion that anything like this occurred in the case at bar.
For the foregoing reasons I would affirm the order appealed from.