Charles H. Thompson Co. v. Burns

Mr. Justice Goodwin delivered the opinion of the court. 7. Judgment, § 133*—when due diligence shown on motion to set aside judgment by default. Due diligence is shown where a motion to set aside a judgment entered on defendants’ failure to appear at date set for trial is made within two days after such entry. 8. Judgment, § 132*—when trial court does not abuse discretion in refusing to set aside judgment by default during term. No abuse of discretion is shown in the action of a trial court in setting aside a judgment for the plaintiff entered on defendants’ failure to appear at the date set for trial, where it appears by defendants’ affidavit that they misunderstood the date for which the hearing was set and that they have a meritorious defense to the suit. 9. Judgment, § 150*—when failure to dispose of plea in abatement ground for setting aside judgment. The existence of an undisposed of plea in abatement at the time of entry of judgment by default justifies the setting aside of such judgment. 10. Pleading, § 355*—when permission to withdraw plea in abatement and plead to merits within discretion of court. Permitting a defendant to withdraw his plea in abatement and plead to the merits after issues have been made up and the cause reached for trial is a matter within the discretion of the court. 11. Judgment, § 168*-—when disposition of plea in abatement and hearing on merits may be had after setting aside of judgment by default. Where a judgment by default, entered on a defendant’s failure through mistake as to the date set to appear at the trial, is set aside, the plaintiff may ask for disposition of a plea in abatement filed, for an immediate hearing on the merits, and imposition of terms in the order setting aside the judgment. 12. Judgment, § 168*—when case properly dismissed for refusal to proceed after denial of motion to set aside order vacating judgment. Where after a judgment for the plaintiff has been set aside and the cause set for trial on the merits, the plaintiff, after denial of a motion to set aside the order vacating the judgment, refuses to proceed, the suit is properly dismissed. On Rehearing. 1. Pleading, § 34*—when attached instrument not part of declaration. An instrument attached to but not set out in a declaration is no part thereof. 2. Abatement and bevival, § 21*—when Question raised by plea of abatement averring lack of necessary parties plaintiff cannot be determined. Where a promissory note declared on is attached to but not set out in the declaration, the issue raised by a plea in abatement, averring lack of necessary parties plaintiff in that the note is payable to the plaintiff and another jointly, cannot be determined until the note is formally offered in evidence. 3. Abatement and bevival—when within discretion of court to permit withdrawal of plea of abatement and pleading to merits before judgment. It is within the discretion of the court to permit the withdrawal of a plea in abatement, and plead to the merits at any time before judgment, even after there has been a finding in favor of the plaintiff on the issue raised by the plea. 4. Abatement and bevival—when discretion of court permitting withdrawal of plea in abatement and pleading to merits not abused. It is not an abuse of discretion to permit a defendant to withdraw a plea in abatement and plead to the merits where he had stated in court at the setting aside of a judgment against him that he would make a motion to that effect at the time set for trial if there was any doubt about the validity of the plea. 5. Judgment, § 143*—when affidavit in support of motion to set aside judgment by default sufficient. In support of a motion to set aside a judgment entered on a defendant’s failure to appear at the trial, an affidavit which states that the defendant has a meritorious defense, and also the nature thereof, is sufficient, though strictly speaking, such statement be a conclusion of law.