Weller v. Hammer

Vanderburgh, J. The defendant, after the plaintiff had taken judgment as upon default, moved the court to set aside the judgment, [196] upon affidavits showing that the plaintiff had agreed to extend the time for answering, and that an answer had been served in time. This motion was denied, it appearing, among other things, that there was no written stipulation, and no legal service of an answer. The present motion was made to set aside the judgment, and for leave to-answer, upon substantially the same facts, except that the affidavit, shows that defendant’s counsel “understood” plaintiff’s attorney to-grant such further time to answer. This motion was also denied. 1. Upon the record, there^, was no abuse of discretion in refusing, the relief asked. 2. The defendant should have asked the additional relief on the-first motion, or obtained leave to renew the motion, no new facts having arisen. Order affirmed.