Johnson v. German

POLLEY, P. J. [x] This is an appeal from an order vacating a judgment entered on default. This action was brought for the recovery of 14 pigs of which both plaintiff and defendant claim to be the owner. The summons and complaint, together with an affidavit' and undertaking in claim and delivery, were served on the 4th day of December, 1920. The pigs were taken by the sheriff, but within the time allowed by law defendant furnished, a redelivery bond, and the pigs were returned to him. Immediately after the commencement of the action defendant employed counsel and directed him to take charge of the case and take whatever steps that might 'be necessary to protect his rights. Some negotiations tending to bring about a settlement [409] of the controversy took place, and an attempt was made to have, the matter settled by arbitration, but without success. In the meantime the time for answering had expired, and judgment had been entered' by default. Upon learning of the entry of judgment defendant promptly moved to set aside the judgment and for leave to answer. The failure to answer within the time prescribed by law was negligence, but it was negligence for which defendant was in no wise responsible, and under the circumstances above shown was excusable. The attempt to settle the case out of court and save the expense and delay of litigation appears to have been sincere on the part of defendant’s counsel, and it was commendable under the circumstances. [2] It is contended by appellant that the affidavit of merits is not sufficient. The affidavit does not strictly comply with the usual form used in such cases, but it, together with the proposed answer, contains enough to show that the defendant believes that he has a meritorious defense to the action, and that he is anxious to defend the same. [3] It has .repeatedly been held by this court that an order setting aside a default judgment and' permitting a defendant to answer and defend on the merits will not be disturbed unless there has been an abuse of discretion by the trial court. Under the circumstances shown by the record in this case, we are of the opinion that there has been no abuse of discretion, and that the defendant ought to be given an opportunity to answer and defend in the action. The order ■ appealed from- is affirmed.