Board of Commissioners v. Hollister , 2 Hilt. 588 ( 1860 )

Hilton, J.

Upon a motion to open a judgment entered against a defendant by default, and through his inadvertence, we do not determine absolutely whether the defence he desires to interpose will necessarily prevail at the trial, but merely look into it so far as to be able to say that it is not clearly frivolous ; and then if, in addition, we are satisfied that it is set up in good faith, and the neglect of the party is satisfactorily excused, it is almost a matter of course to permit him to come in and answer.

I see no reason for departing from this general practice in the present case, and therefore must decline passing upon the defence disclosed in the motion papers, as requested by the plaintiff’s counsel, and content myself with merely saying that, in my opinion, the defence is clearly not frivolous.

'The motion, therefore, to vacate the judgment, and for leave to answer, is granted on payment of $10 costs of the motion, and the disbursements in entering the judgment.

Ordered accordingly.