201 P. 545 | Or. | 1921
The general rule is thus stated by Mr. Justice Mo-Bride in Hall v. McCan, 62 Or. 556 (126 Pac. 5), quoting with approval the language of the Supreme Court of California in Watson v. San Francisco etc. R. R. Co., 41 Cal. 20:
“In a case where, as here, the application is made so immediately after default entered as that no considerable delay to the plaintiff is to be occasioned by permitting a defense on the merits, the court ought to incline to relieve. The exercise of the mere discretion of the court ought to tend, in a reasonable degree, at least, to bring about a judgment on the very merits of the case; and when the circumstances are such as to lead the court to hesitate upon the motion to open the default, it is better, as a general rule, that the doubt should be resolved in favor of the application.”
This excerpt is also approved in an opinion by Mr Justice Robert S. Bean in Hanthorn v. Oliver, 32 Or. 57 (51 Pac. 440, 67 Am. St. Rep. 518).
Besides all this, courts ought to and will be more compassionate towards a defendant than to a plaintiff in default, because the latter begins the litigation and generally may withdraw his suit and begin again without material prejudice. On the other hand, the defendant cannot abandon a case against himself. He must combat the plaintiff at his peril and if he is cast in judgment, he cannot commence again. Prom
Reversed and Remanded.