Scilley v. Babcock, 104 P. 677

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104 P. 677 | Mont. | 1909

MR. JUSTICE SMITH

delivered the opinion of the court,

Plaintiff began his action in the district court of Carbon county to reform a written instrument, and enforce specific performance thereof after reformation. The defendants, having been regularly served with process, failed to appear and answer the complaint within the time allowed by law, whereupon, on November 2, 1908, their default was entered, and on December 17, 1908, the court rendered a decree in favor of the plaintiff in accordance with the prayer of the complaint. On January 8, 1909, the defendants served and filed a motion to vacate and set aside the judgment and open the default entered against them, which motion was accompanied by the affidavit of the defendant G. H. Babcock and a proposed answer to the complaint. The affidavit sets forth that, upon being served with process, the defendants employed an attorney residing at Red Lodge to defend the action; that the attorney promised to do so, but failed to appear or make any defense, and allowed the action to go by default. There is in the affidavit an intimation that the attorney acted intentionally in failing to protect the rights of the defendants; but an *539affidavit afterward filed by the attorney of his own motion, and other affidavits filed by the plaintiff and his attorney, clearly show that this was not the ease, but rather that the attorney, who was a candidate for public office at the time, in the heat of the political campaign and because of the fact that he was busily engaged in the canvass for votes, simply forgot all about the matter. On the showing made, however, the district court set aside the judgment, opened the default, and allowed the defendants to answer. From the order of the court an appeal is taken.

We are of opinion that the court abused its discretion in the premises. (See Thomas v. Chambers, 14 Mont. 423, 36 Pac. 814; City of Helena v. Brule, 15 Mont. 429, 39 Pac. 456; Chambers v. City of Butte, 16 Mont. 90, 40 Pac. 71; S. C. Herbst Importing Co. v. Hogan, 16 Mont. 384, 41 Pac. 135; Butte Butchering Co. v. Clarke, 19 Mont. 306, 48 Pac. 303; Hancock v. Pico, 40 Cal. 153; 23 Cyc. 939.) The order appealed from is reversed.

Reversed.

Mr. Chief Justice Brantly. and Mr. Justice Holloway concur.