Coos Bay Navigation Co. v. Endicott
34 Or. 573
Or.
1899
Check Treatment
Mr. Justice Bean,

after stating the facts, delivered the opinion of the court.

It is a well settled rule that an application to set aside a default is addressed to the sound discretion of the trial court, and that its action thereon will not be disturbed on appeal, unless there is an abuse thereof, and especially so when a default has been set aside, as in this case, and a successful defense afterwards made: City of Chicago v. Adams, 24 Ill. 492. It is true this discretion is not an arbitrary one, but must be exercised in conformity with the spirit of the law, and in accordance with the rules established in reference thereto: Thompson v. Connell, 31 Or. 231 (65 Am. St. Rep. 231, 48 Pac. 467); Hanthorn v. Oliver, 32 Or. 57 (67 Am. St. Rep. 518, 51 Pac. 440). But as said by the Supreme Court of California in Watson v. Railroad Co., 41 Cal. 20: “Each case must be determined upon its own peculiar facts, for perhaps no two cases will be found to present the same circumstances *577for consideration. As a general rule, however, in cases where, as here, 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.”

While the showing made in this case was somewhat meager, and although the better practice undoubtedly is for an affidavit in support of a motion of this hind to be made by the party himself, yet, under the circumstances, we are not prepared to say that the trial court abused its discretion or exercised it erroneously. The defendants were, no doubt, negligent in not appearing within the time specified in the summons, but they were in a measure excused by the practice which seems to have prevailed, that, unless the time for answering expired before the beginning of the term, the cause would go over. In view of this fact, and the further fact that, pending negotiations in reference to the subject-matter of the litigation, the default was entered, and a jury called to assess the damages, we are of the opinion the action of the court in permitting them to defend ought not to be disturbed.'

Nor was it error to sustain the objections to the questions propounded to the witness Dodge, because (1) the record does not disclose the particular facts sought to be elicited by the question (Kelley v. Highfield, 15 Or. 277, 14 Pac. 744); and (2) they related to a matter wholly *578immaterial, and not in issue in the case, as the complaint alleged, and the answer admitted, that the parties were unable to agree.

Upon the remaining questions, it is sufficient to say that it was held in Nelson v. Oregon Ry. & Nav. Co., 13 Or. 141 (9 Pac. 321), and McQuaid v. Portland & Vancouver R. R. Co., 19 Or. 535 (25 Pac. 26), that the refusal of atrial court to set aside a verdict because of excessive damages cannot be reviewed on appeal. And as said in Kumli v. Southern Pacific Co., 21 Or. 505 (28 Pac. 639): “Until these cases are overruled, they are the law of this state, and control in the determination of the questions sought to be raised, in this case.” The judgment from which this appeal is taken is not so excessive or disproportionate as to call for a re-examination, at this time, of the doctrines of the cases referred to. Judgment affirmed.

Affirmed.