Livesley v. O'Brien ( 1893 )

The opinion of the court was delivered by

Hoyt, J.

The judgment in this case was rendered under the authority of §1665, Code of Procedure, for failure on the part of the defendants to answer interrogatories served upon them by the attorneys for the plaintiffs. There is only one suggestion on the part of the defendants against the regularity of the proceedings leading to the rendition of this judgment, and that is, that there was no formal order on the part of the court requiring the defendants to answer such interrogatories. In our opinion, upon the service of such interrogatories the defendants were required to answer the same, or show cause to the court why they should not do so, within the time prescribed by the statute, but even if this be not so, and it required some formal action on the part of the court by way of approval of such interrogatories before the defendants -were so called upon to answer, in this case such approval was given by the court when it overruled the motion of the defendants to strike them from the files. It follows .that the action of the court in rendering the judgment was regular.

The other question presented by the record is as to the sufficiency of the showing made by the defendants upon their motion to vacate and set aside such judgment. Motions of this character are directed to the discretion of the trial court, and its action in passing thereon will not be reversed by this court unless the record shows an abuse of such discretion. It is not sufficient that we should find as a matter of fact that the showing was sufficient to have justified the setting aside of the judgment. We must further find that the showing was such that there was no room for the exercise of discretion by the lower court before we can rightfully interfere. The showing made in this case does not furnish proof which so satisfies our minds. The motion when first made, the day after the rendition of the judgment, was accompanied by no showing whatever, and it is doubtful whether, as á matter of right, the defendants’ showing thereafter made and filed without express leave of the court was entitled to any consideration whatever. But even if it was, we do not think that such facts are made to appear therefrom that the duty of the court to set aside the judgment was made so clear that there was no proper discretion left in the court as to the action it should take. Such showing, although going over a good deal of ground, does not in fact give any good reason why the case did not receive the attention of some member of the firm of. attorneys who represented the defendants. Beside, such showing, in certain particulars at least, does not correspond with the facts alleged in the answer of the defendants.

The judgment and order appealed from must be affirmed.

Dunbar, C. J., and Stiles, Anders and Scott, JJ., concur.