6 Mont. 135 | Mont. | 1886
This is an appeal from a judgment and an order overruling a motion to vacate the' same.
It appears from the record that an amended complaint was filed on the 2d day of October, 1883, and an answer thereto on the 7th day of June, 1881. At the December term, 1881, the cause was continued on motion of the defendants, and at the spring term, 1885, on the 1st day of April, they filed their second motion for a continuance, which was overruled, and with the consent of the court, and by stipulation of the parties, the cause was set for trial on the 15th day of said month. On the 17th day of April, the defendants failing to appear, a trial was had in their ab. sence, and on the following day a judgment was rendered in favor of the plaintiff for the amount claimed in his complaint. On the 13th day of June following, a motion to vacate the judgment was heard before the judge at chambers, and overruled, and the defendants appeal. •
After the motion for a continuance had been overruled on the 1st day of April, and the cause set for trial on the 15th, there were negotiations between the parties for a settlement, and it seems that a settlement was -arrived at,
Nor does it satisfactorily appear that the defendants had a defense. They make no affidavit of merits, and do not disclose the facts upon which their defense rests. The one hundred and fourteenth section of the code authorizes proceedings of this kind to vacate and set aside a judgment; but if done at all, it must be in furtherance of justice, and the court or judge ought to have an opportunity to look into the facts upon which the proposed defense rests, otherwise the act of vacating a judgment might be anything else but
Judgment and order affirmed, with costs.