Federal Reserve Bank v. Weant , 113 Or. 1 ( 1924 )

McBRIDE, C. J.

We are of the opinion that plaintiff had a right to proceed with its foreclosure to the extent of having the priority of the liens adjudicated, and that neither the stipulation nor the assignment in bankruptcy had the effect of ousting the jurisdiction of the Circuit Court. But the circumstances shown here clearly indicate to us that the defendant Nelson acted under the belief that the proceedings in bankruptcy had terminated plaintiff’s right to proceed; and probably uifider the belief, also, that he had an understanding with plaintiff’s agent to the effect that no foreclosure would take place ■until the settlement of the estate in bankruptcy, or in the course of that settlement. The delay of plaintiff in taking its decree would rather seem to indicate that neither party, at the time the stipulation and waiver in regard to the sale of the 44 head of cattle was signed, expected to press the proceedings for foreclosure. It will be noticed that the summonses in that suit were served on November 3, 1922, and no default was asked until February 21, 1924, and no decree was entered up until the 25th of the same month.

It seems very plain-to our mind that defendant suffered a default in this case through misapprehension as to the law and as to his rights in the matter, and that he made such a showing that a reasonable exercise of the court’s discretion would have caused it to open up the decree and set aside the default which had been entered only two or three days previously.

The order of the court refusing to open up the default is set aside, and the decree is also set aside, and defendant will be permitted to answer herein; the cost in this proceeding to abide the final decree of the Circuit Court.

Reversed and Decree Set Aside.