16 Mont. 90 | Mont. | 1895
It appears that the defendant’s answer was due on November 15, 1885. About five years and a half elapsed without any answer being filed. Its default being entered, fifteen months elapsed without any effort to obtain leave to set aside the default, or to file answer when the application was made. We are of opinion that the facts set up do not show any excusable neglect. Seven years elapsed without the defendant’s making an attempt to file an answer. It is a matter of which we have knowledge, from the laws of the state, that a municipal corporation like the city of Butte is constantly represented by an attorney. Nothing whatever appears to show why the city did not attempt to ask leave to file an answer. It is simply shown that the gentleman who was the city attorney of Butte, when the application to set aside the judgment and default was made had an impression from some source that the matter was disposed of. He, in his affidavit, says that he was unable to state why the city was allowed to be in default. We are of opinion that the city was utterly and absolutely without excuse, and that there is nothing in the record to show that the lower court exercised a reasonable discretion in setting aside the judgment and the default. (City of Helena v. Brule, 15 Mont. 429; Thomas v. Chambers, 14 Mont. 423.)
The order setting aside the default is reversed, and the case is remanded, with directions that the judgment against the «city of Butte be affirmed.
Reversed.
