Hall v. McCan

• Decision Date: 13 August 1912
• Citation: 62 Or. 556,126 P. 5
• Parties: HALL v. McCAN.
• Court: Oregon Supreme Court

126 P. 5

62 Or. 556

HALL v. McCAN.

Supreme Court of Oregon

August 13, 1912

Appeal from Circuit Court, Hood River County; W.L. Bradshaw, Judge.

Action by E.O. Hall against Charles P. McCan. From an order setting aside a default and permitting defendant to answer, plaintiff appeals, and defendant moves to dismiss the appeal. Appeal dismissed.

Plaintiff brought an action against defendant to recover the sum of $1,250. Summons was served upon defendant on May 11, 1912 and on May 22d a default judgment was taken against him before the clerk. On May 23d there was filed a motion to vacate the judgment and for leave to answer. In support of the motion, plaintiff filed an affidavit of defendant to the effect that he was served with summons on Saturday, May 12th and that early Monday morning he delivered the summons and complaint to his attorney, Geo. R. Wilbur, with instructions to make his appearance and file an answer in the case; that he left town for a week, and upon his return was informed by his attorney that his defense was being cared for; that on May 22d he was called to the office of his attorney for the purpose of preparing his answer, and was informed that it was the last day for filing the same; that it was impossible to complete the answer that day, and he was informed by his attorney that he would arrange with the attorney for plaintiff for additional time; and that he did not know this until the morning of the 23d of May. The affidavit of Mr Wilbur states that he received the answer from defendant and made an estimate of the time within which it should be filed and wrongly entered the date as May 22d; that, it being impossible to complete the answer on the 22d, he called upon plaintiff's attorney on that day to ask him for an extension of time in accordance with the custom of the local bar, and was then informed that the answer day was May 21st and that plaintiff had that morning taken judgment by default. The court set aside the default and allowed defendant to answer, and from that order plaintiff appeals. Defendant moves to dismiss the appeal.

Ernest C. Smith, of Hood River, for appellant.

Geo. R. Wilbur, of Hood River, for respondent.

McBRIDE J. (after stating the facts as above).

The granting or refusing a motion to open up a default and permit an answer on the merits is a matter for the exercise of sound discretion of the court, and is never disturbed on appeal except for an abuse of that discretion. As remarked by this court in Hanthorn v. Oliver, 32 Or. 57, 51 P. 440 67 Am.St.Rep. 518, quoting from Watson v. Railroad Co., 41 Cal. 20, " 'applications of this character are addressed to the *** legal discretion of the court in which the default has occurred, and should be disposed of by it as substantial justice may seem to require. Each case must be determined by its own peculiar facts; for, perhaps, no...