94 P. 1056 | Mont. | 1908
delivered the opinion of the court.
The parties to this action were husband and wife. The plaintiff began the action to obtain a divorce, alleging as grounds therefor extreme cruelty and willful desertion on the part of the •defendant. The defendant answered, denying the allegations of the complaint touching the grounds for divorce relied upon by plaintiff, and as an affirmative defense alleged that the plaintiff was guilty of willful desertion and willful neglect of the defendant. The defendant prayed that a decree of divorce be entered in her favor and that she be allowed permanent alimony.
The action was begun in Deer Lodge county, and was regularly set for trial by the court on January 14,1907, at the hour of 9 :30 •o’clock A. M., at which hour the defendant, her attorney, and witnesses were present in court ready for trial. It appears that two other causes were set for trial on the same day, this cause being the third in order. The first of said causes was disposed of, and the second was being tried, when the attorney
On or about the eighteenth day of January, 1907, the defendant through her counsel, filed a motion to set aside the verdict of the jury and the default of defendant, alleging as ground therefor excusable neglect on the part of her. attorney. Several affidavits were filed in support of and in resistance to this motion, the substance of which has already been stated. Thereafter an affidavit of disqualification was filed against the presiding judge in Deer Lodge county, and the motion last mentioned was transferred to the second judicial district court for hearing. On September 28, 1907, the last-mentioned court made an order setting aside the judgment, and from the order plaintiff has appealed to this court.
The motion to set aside the judgment was addressed to the sound legal discretion of the trial court. We have carefully examined the affidavits referred to, and we are not prepared to say that the court abused its discretion. In one view of the matter, it may be said that the attorney for the defendant, not having had the positive assurance of the judge that the case would not be called in his absence, was not justified in assuming that he could leave the county seat of Deer Lodge county without risk to his client’s interests. Indeed, it appears that the attorney said he thought he would “take a chance.” On the other hand, the attorney affirms that he construed the language of the judge to mean that he might go without incurring any risk; and we can see how the judge who made the final order might very well give counsel credit for making this statement in
It is suggested by counsel for the appellant that, before the court was justified in setting aside the judgment, an affidavit of merits should have been presented on the part of the defendant. This, however, is not a ease where the reason for filing an affidavit of merits is present. The cause was at issue, the ■defendant, her counsel, and witnesses were present on the day the cause was set for trial, ready to proceed. This being the situation, the court had the information that the defendant claimed to have a meritorious defense to the action, and no affidavit of merits was necessary.
We have decided this case upon the question presented by the briefs of counsel for both parties. The decision must not, however, be construed as a holding that, after the trial of an issue regularly made by the pleadings, a judgment may be set aside without a motion for a new trial. This question was not presented, and is not decided. We also pass the question whether a motion to vacate a verdict and set aside a default is sufficiently broad to justify an order setting aside a judgment.
The order of the district court of Silver Bow county is affirmed.
'Affirmed.