Horn v. United Securities Co.

Mr. Ohiee Justice WolvertoN delivered the opinion. Appellant has made two assignments of error. One pertains to the overruling of the motion to strike out, and the other is with reference to the court’s refusal to vacate the judgment with leave to answer over. The former was not insisted upon in the argument, doubtless because it was deemed frivolous, and without merit, as it really is. The latter requires consideration. The question involved is whether the court abused its discretion in denying the relief sought. The excuse suggested why there was no appearance when the motion was disposed of and the judgment entered for want of an answer is contained in the affidavit of counsel for appellant. It shows, in brief, that counsel forwarded the motion to strike out to the clerk October 5, with a request to the clerk to say to the court when the motion was called up that it was not put in for delay, and that counsel desired an inspection and decision with reference to it; that counsel desired also to be advised of the result of the decision ; that on October 10 the clerk [37] notified counsel that the motion was overruled, which letter of notification was not delivered at the office of counsel until the morning of the 13th, at which time he was in attendance upon the court in Columbia County; that on that day counsel prepared an answer, sent a copy of it to opposing counsel, and the original to the clerk; that counsel also wrote to opposing counsel, and requested him, as a matter of professional courtesy, to advise him as to the proper steps to be taken by the affiant in the premises, to which plaintiff’s counsel replied in a couple of days that he had obtained judgment in the cause; that affiant was taken by surprise; and that the judgment was given and rendered through his mistake, inadvertence, and excusable neglect. The motion was addressed to the sound discretion of the circuit court, and, if there has not been a manifest abuse of it, we cannot disturb the result: White v. Northwest Stage Co., 5 Or. 99, 103; Lovejoy v. Willamette Locks Co., 24 Or. 569, (34 Pac. 660.) The showing made indicates quite clearly that counsel was derelict in his attendance upon the court at the proper time, and the reasons advanced for his dereliction were manifestly insufficient to occasion surprise, nor was there such inadvertence or excusable neglect that the circuit court was required, in the exercise of a sound discretion, to relieve against. The court might have relieved counsel of the situation, but it was not an abuse of discretion not to do so. The judgment will be affirmed. Affirmed.