Heardt v. McAllister

De Witt, J. The filing of the answer, September 12th, was after the defendant’s default had been duly taken in open court. Such filing was a nullity. The answer is before us, however, for another purpose, that is, as an exhibition of defendant’s alleged meritorious defense. As such, it meets every requirement. An answer could not well have been framed, the matter in which, if true, would be a more thorough defense on the merits. The motion to set aside the judgment was made in time. (| 116, Code Civ. Proc.) The only other consideration is whether defendant is entitled to relief from the judgment by reason of his mistake, inadvertence, surprise, or excusable neglect. (§ 116, Code Civ. Proc.) The matters set up in defendant’s motion are undenied, and are taken by this court as true. The defendant was living at a remote place, fifty miles from the county seat. His family were temporarily sheltered in a tent, at the approach of winter. He made a journey of thirty-two miles to Butte, and placed the matter of his defense in the hands of a business associate and responsible person, one James Brown. This was eight days before his answering time expired. Brown employed able counsel who prepared an answer at once. Personal disasters of a serious nature caused Brown to forget the business of defendant until the last day, September 10th. He then verified the answer, which was promptly mailed to the clerk of the court. If a defendant, situated as this one was, and displaying the [408] diligence that he did, cannot be relieved from a judgment by default, against which judgment he has a perfect defense, it is difficult to conceive of a case in which a court would grant the relief. We cite the following cases in this court upon the subject generally: Lowell v. Ames, 6 Mont. 189; Whiteside v. Logan, 7 Mont. 373; Donnelly v. Clark, 6 Mont. 136; Briscoe v. Mc-Caffery, 8 Mont. 336; Benedict v. Spendiff, ante, p. 85. The order is reversed with costs, with the direction to the District Court to set aside the judgment and allow defendant to answer. Blake, C. J., and Harwood, J., concur.