Bertline v. Bauer

Paiwe, J. Notwithstanding the affidavits presented by the appellant showed clearly enough that the summons was personally served on the defendant, and that he had some sort of an understanding that a suit was pending against him for damages, we still think it cannot be held an abuse of discretion to let the defendant in to answer upon just terms. It is not only possible, but probable, that his understanding of the matter was confused, and that he had confounded the civil and criminal proceedings together, and supposed that it would be in time for him to answer to the whole matter when called on in court to do so. It appears that he was present for the purpose of answering in the criminal suit; also that he intended to litigate the claim for damages ; and these facts, together with his promptness in moving to be let in to answer, all go to confirm his statement that he did not fully understand the separate character of the two suits. The statute is remedial in its character, and should be applied liberally, upon just terms, to secure a fair hearing upon the merits, even where there has been some excusable ignorance, stupidity or conceit. By the Court. — The order appealed from is affirmed.