Voelker v. Golden Curry Con. Mining Co.

MR. CHIEF JUSTICE BRANTLY delivered the opinion of the court. Appeal from an order setting aside a judgment entered upon the default of plaintiff in failing to file an amended complaint within the time allowed therefor after defendant’s demurrer to the original complaint had been sustained. As has been often said by this court, an application to set aside a default is addressed to the discretion of the district court, and its action thereon will not be revised by this court unless it is [467] manifest that its discretion has been abused.' We have examined the showing in support of the motion, and cannot say that the district court abused the discretion lodged in it by the statute. (Revised Codes, sec. 6589.) The default was entered through a mistake of counsel as to the date when the amended pleading was to be filed. His affidavit filed in support of the motion justifies the conclusion that his mistake was excusable. (Mantle v. Largey, 17 Mont. 479, 43 Pac. 633; Pengelly v. Peeler, 39 Mont. 26, 101 Pac. 147.) The order is affirmed. Affirmed. Mr. Justice Smith and Mr. Justice Holloway concur.