77 P. 837 | Or. | 1904
after stating the facts in the above terms, delivered the opinion of the court.
1. The sole question presented for our consideration is whether the circuit court erred in denying defendant’s motion to open up the default, and leave to file an answer to the merits. The application com.es within the first, rather than the last, clause of Section 103, B. & C. Comp., the purpose of the defendant being to be relieved of a default in failing to answer, and to be allowed to answer after the time limited by the Code, and not to be relieved of a decree entered against him through his mistake, inadvertence, surprise, or excusable neglect. The decree formerly rendered had been vacated on the appeal, and nothing remained in the record but an entry of default against the defendant, and the purpose of the motion was to get rid of this, and to he allowed to answer to the merits after the time for answering had expired. The case is not
2. Now, without pursuing the matter further, it is insisted that, because counsel were mistaken as a matter of law, the court ought not to relieve defendant of his default. Every time, however, a demurrer is filed and overruled, there is an apparent mistake on the part of counsel as a matter of law; yet, if interposed in good faith, courts do not hesitate to grant leave to answer. Indeed, such is the law’s behest (B. & C. Comp. § 101), and the statute under which the present relief is sought is strongly akin to that. The delay here was necessarily larger than in
3. Taking into account the viewpoint of counsel, acting honestly and from conscientious motives, as it is very apparent they did, that the course pursued was the only way by which questions deemed vital to their defense could be most effectively presented, and their right to have the law finally determined upon the theory adopted, it not being trivial or frivolous, and there being plausible reason and authority for its support, we are of the opinion that the motion ought to have been granted, and that there was error in the exercise of the legal discretion accorded to the court in such matters in denying it. In support of these views and the conclusions here reached, see Baxter v. Chute, 50 Minn. 154 (52 N. W. 379, 36 Am. St. Rep. 633); Whereatt v. Ellis, 70 Wis. 207, 35 N. W. 314, 5 Am. St. Rep. 164).
The decree of the trial court will therefore be reversed, and the cause remanded, with directions to allow the motion to set aside the default of defendant in the supplementary proceeding, with leave to file his answer tendered to the merits, and for such, other proceedings as may seem proper. Reversed.