Thе complaint in this action was filed on December 19, 1947, and summons was issued. The defendants are father and son. The complaint alleges that thе son, John Lennon, negligently injured the plaintiff in an automobile accident. The- sheriff’s return shows that he personally served John Lennon and the father, John F. Lennon.
On January 8, 1948, counsel for the plaintiff learned that John Lennon was in fact a minor. A praecipe was filed with the clerk of cоurt of Cascade county requesting that an alias summons be issued for the rеason that “the original summons issued in said action on December 19, 1947, was returned by the Sheriff December 19, 1947, without being served upon one of the abоve named defendants, to-wit: upon John Lennon.”
Except that it was entitled “Alias Summons” the summons and complaint served on January 8, 1948, was identical with that served December 19, 1947.
The sheriff’s return of service on the alias summons wаs as follows: “I hereby certify that I received the within Alias Summons on the 8th day of January, 1948; that I personally served the same on the 9th day of January, 1948, uрon John Lennon, one of the defendants named therein by delivering a сopy of said Alias Summons to him personally in said County of Cas *508 cade аnd also delivering a copy of said Alias Summons to his father, John F. Lennon.”
On January 16, 1948, the plaintiff caused the default of the father, John F. Lennon, to be entered and on January 22, 1948, on application of the plaintiff, judgment was entered against the father, John F. Lennon.
On January 26, 1948, counsel for the defendants filed a motion to set aside the default, an answer and an affidavit reciting the foregoing facts and stating further that after the service of the alias summons' the defendants believed they had until January 28, 1948, to appear.
Counsel for plaintiff filed a counter-affidavit in which he sеt forth a conversation with defendant’s counsel prior to entering the default. Counsel alleged that he had informed the defendants’ counsel that the sole purpose of the second service was to сomply with the requirements for serving a minor and that the service of the alias summons on John F. Lennon had been for the sole purpose of аcquiring jurisdiction over the minor John Lennon.
After hearing on defendants’ motiоn to set aside the default judgment the trial court set aside the judgment. From this оrder the plaintiff has appealed.
The only question is whether the court abused its discretion in entering the above order.
This court has repeatedly declared that default judgments are not favored and thаt it is the policy of the law to have every case tried on its merits. Pаtterson v. Patterson, Mont. 1947,
*509 *508 The New York court was confronted by a similar situation in *509 Gambold v. MacLean, 119 Misc. R. 432, 197 N. Y. S. 43, 44, and there the court said: “It seems to the court that he [defendant] was justified in being sufficiently confused by the plaintiff’s practice to warrant being excused for any default, if there were any. ’ ’ The same could be said in the instant case.
Defendants’ dеlay in appearing was initially caused by the confusing and misleading prаctice of plaintiff, and while defendants’ counsel was not blamelеss we cannot say the court abused its discretion in declining to penаlize the client therefor. The trial court did not err in setting aside the default. The order is affirmed. ■