De Coster v. Jorgenson

Pee Curiam. Plaintiff’s assignee appeals from an order granting a motion of defendant to set aside a default judgment obtained against him by plaintiff, and to permit defendant to answer. The judgment was entered September 30, 1915, and the motion by defendant under G. S. 1913, § 7786, to set it aside on the ground that it was taken against him through his mistake, inadvertence, surprise -or excusable neglect was made November 8, 1916. The principal grounds upon which a reversal is asked are: (1) That the court below abused its discretion in granting the relief; (2) that there was no authority under section 7786 to relieve defendant from this judgment because the motion was not made within one year after notice of the judgment. The case made in support of the relief asked was not a strong one, but a majority of the court think that the showing of mistake or excusable neglect was sufficient to prevent our saying that the trial court abused its discretion, that the evidence warranted the court in finding that defend [473] ant had no notice of the judgment until less than one year before the motion was made, and that the relief is not barred by laches or lack of diligence in moving for it. Order affirmed.