37 Kan. 271 | Kan. | 1887
Opinion by
This was an action in ejectment. The petition was filed on the 28th day of November, 1879, and j udgment by default was taken on the 22d day of January, 1880. Sometime in the month of December, and before the answer-day named in the summons, Francis L. Sanders, one of the defendants in the court- below, employed an attorney to defend the action against him and his co-defendants, stating to him all the facts, and receiving from him an assurance that the defendants had a good defense upon the merits to said action. On the 6th day of January, the attorney employed by Francis L. Sanders was suddenly called to Washington on important business, and before leaving requested a brother attorney to go into court, then in session, state the facts, and ask leave to file an answer for the defendants. On the 7th or 8th day of January, the attorney went into court, called the attention of the court to the case, and requested leave to file an answer, and was informed by the judge that the case would not be for trial at that term, and that the attorney employed would have time to answer after his return from Washington. On the 22d day of January, judgment was taken by default, against the defendants, and on the 9th day of February an execution was issued on the judgment. On that day, the attorney employed being still absent, the other attorney filed in the clerk’s
On the 12th day of March, 1883, the death of Francis L. Sanders was suggested, and by stipulation an order was entered reviving the judgment against Mary A. Sanders, administratrix of the estate of Francis L. Sanders, deceased, in her official capacity as such administratrix. On- the 16th day of March, 1883, the defendants filed 'their motion to set aside and vacate the judgment rendered against them by default, on the 22d day of January, 1880, with leave to file an answer, and with an offer to pay all costs accrued in the action to date, and also presented a verified answer. Notice was given the attorneys of record of the plaintiff that this motion would be heard
We have very carefully considered the questions involved, and have with great care examined all the facts and circumstances, and are of the opinion that it would be an abuse of that wise discretion vested in the district court to .. n . prevent a failure of justice, to deny to the plaintiffs in error a fair opportunity to be heard upon the merits. There is no laches that can be attributed to them,- and while it is a fact that the attorney employed permitted the time for answer to expire without filing, he made an application for leave to file within a very reasonable length of time thereafter, and was certainly misled by the statement of the judge that the case would not be for trial at that term, and that, he would have time to answer after his return from Washington. This fact is not controverted, but is strengthened by the prompt action of the judge in the order for a recall of the execution and the stay of further proceedings, and his subsequent order allowing the defendants to file an answer upon the payment of all costs. All these things occurring so soon after he had made this statement to the attorney who first made application for leave to file an answer out of time, seem almost absolutely conclusive that the defendants were to be protected by that promise of the judge, and were to be given an opportunity to contest the case on its merits. In giving the plaintiffs in error an opportunity to present their defense, we are doing only
It is recommended that the ruling of the court below denying the motions be reversed, and the cause remanded to the district court, with instructions to sustain the motions to vacate the judgment, and allow the plaintiffs in error to file an answer to the petition on the terms specified in the motions.
By the Court: It is so ordered.