Bowen v. Webb , 34 Mont. 61 ( 1906 )

MR. JUSTICE HOLLOWAY

delivered the opinion of the court.

1. The order, made before 'final judgment, refusing to set aside the default is not an appealable order. (Section 1722 of the Code of Civil Procedure, as amended by an Act of the Sixth Legislative Assembly [Session Laws, 1899, p. 146].)

2. This court does not take judicial notice of the provisions of rules of district courts. (Code Civ. Proc., sec. 3150.)

3. The granting or refusing to grant a motion to set aside a default is within the sound legal discretion of the trial court, and the appellant here assumes the burden of showing facts which made the denial of his motion a manifest abuse of that discretion. (Briscoe v. McCaffery, 8 Mont. 336, 20 Pac. 691; Blaine v. Briscoe, 16 Mont. 582, 41 Pac. 1002; Morse v. Callantine, 19 Mont. 87, 47 Pac. 635; Eakins v. Kemper, 21 Mont. 160, 53 Pac. 310; 6 Ency. of Pl. & Pr. 163, and cases cited.)

4. In order to justify the district court in granting the motion, the defendant was required to show (a) that he proceeded with diligence, which may be conceded; (b) his excusable neglect; (e) that the judgment, if permitted to stand, will affect him injuriously, and that he has a defense to the plaintiff’s cause of action upon the merits.

So far as defendant’s affidavits attempt to make out a case of excusable neglect, at most it may be said they show merely a press of business engagements on the part of defendant’s attorney which called him out of his office a great deal of the time, and by reason whereof he made a mistake in the day upon which he was required to make appearance. We are not prepared to say that this showing was sufficient in this respect to justify the court in' setting aside the default. Frequently it has been held to be insufficient. (Thomas v. Chambers, 14 Mont. 423, 36 Pac 814; City of Helena v. Brule, 15 Mont. 429, 39 Pac 456; Herbst Importing Co. v. Hogan, 16 Mont. 384, 41 Pac. 135.)

While the law allows a defendant twenty days after service of summons upon him, within which to appear in the action, it does not require him to defer his appearance until the last day, and when he does so he assumes the risk of his delay, if in fact he miscalculates the time.

It has been held uniformly that the defendant must present in support of his motion to set aside a default an affidavit of merits; that is, an affidavit showing a defense to the plaintiff’s cause of action upon the merits. (Donnelly v. Clark, 6 Mont. 135, 9 Pac. 887.) A default will not be vacated to permit the filing of a demurrer. Conceding that a proffered answer, if identified and offered for that purpose and sufficient in form, may perform the office of an affidavit of merits, we are met, in this instance, with the recital in the bill of exceptions that the trial court heard the motion upon the complaint, motion and affidavits. Nowhere is the proffered answer referred to as a paper offered in support' of the motion. It is not identified at all, while the motion itself seeks to have the default set aside in order that the defendant may demur to the complaint. In view of the declared purpose of this motion, and in view of the recital in the bill of exceptions above, and in the absence of anything to show affirmatively that the proposed answer was offered as an affidavit of merits, we cannot presume that it was considered by the trial court, and, in its absence, there is not anything presented by way of an affidavit of merits, and, of course, a trial court would not grant the motion without such affidavit. Every presumption in favor of the district court’s ruling will be indulged in this court. Error will not be presumed. It must be made to appear affirmatively.

We have examined the other questions presented by appellant, but there does not appear to be merit in them.

We think this record fails to disclose any error. The appeal from the order overruling the motion to set aside the default is dismissed, and the judgment is affirmed.

Affirmed.

Mr. Chief Justice Brantly and Mr. Justice Milburn concur.