Schaeffer v. Gold Cord Min. Co.

MR. JUSTICE HOLLOWAY delivered the opinion of the court. It may be said to be the settled doctrine in this state that in an instance of this character, where a party defendant in default applies to the court to have the default set aside, he must, in addition .to excusing his default, support his application by an affidavit of merits setting forth the facts constituting his defense, or tender with his motion and affidavit a copy of his proposed answer. (Donnelly v. Clark, 6 Mont. 135, 9 Pac. 887; Bowen v. Webb, 34 Mont. 61, 85 Pac. 739.) And there is good reason for this rule. A court would not be justified in setting aside a judgment manifestly just. In order to move the court the defendant must make it appear prima facie that the action sought is in the interest of justice; for section 774 of the Code of Civil Procedure gives to the court power to relieve against a judgment entered by default, only when such relief is in furtherance of justice, and it is from such affidavit of merits, or proposed answer, that the trial court is to determine whether the defendant has prima facie a defense upon the merits. The statement in the affidavit filed in this instance, that the defendant, by its president, “fully and fairly stated the case in this cause to the undersigned, * * * and this deponent says that said defendant has a good and meritorious defense to said action,” is not a statement of facts, and could not enlighten the court upon the subject of the defense intended to be made. Indeed, the defendant did not ask to be permitted to answer the complaint, but did ask to have the default set aside, and that it be permitted to answer or demur. Courts do not open defaults in order to allow demurrers to be interposed. (Bowen v. Webb, above.) While there is also an appeal from the judgment, no contention is made that the complaint does not state facts sufficient to [413] constitute a cause of action. Appellant’s brief is devoted exclusively to a consideration of the appeal from the order. In the absence of an affidavit of merits setting forth the facts constituting the defendant’s defense, or a copy of the answer proposed, the district court did not abuse its discretion in refusing to set aside the default, and the judgment and order are therefore affirmed. Affirmed. Mr. Chief 'Justice Brantly and Mr. Justice Smith concur.