Voelker v. Golden Curry Consol. Mining Co.

• Decision Date: 21 February 1910
• Citation: 107 P. 414,40 Mont. 466
• Parties: VOELKER v. GOLDEN CURRY CONSOL. MINING CO. et al.
• Court: Montana Supreme Court

107 P. 414

40 Mont. 466

VOELKER v. GOLDEN CURRY CONSOL. MINING CO. et al.

Supreme Court of Montana

February 21, 1910

Appeal from District Court, Jefferson County; J. B. Poindexter, Judge.

Action by Christopher Voelker against the Golden Curry Consolidated Mining Company and another. From an order setting aside a default judgment, defendants appeal. Affirmed.

Chas. J. Geier and Lincoln Working, for appellants.

H. S. Hepner, for respondent.

BRANTLY, C.J.

Appeal from an order setting aside a judgment entered upon the default of plaintiff in failing to file an amended complaint within the time allowed therefor after defendants' demurrer to the original complaint had been sustained.

As has been often said by this court, an application to set aside a default is addressed to the discretion of the district court, and its action thereon will not be revised by this court unless it is manifest that its discretion has been abused. We have examined the showing in support of the motion, and cannot say that the district court abused the discretion lodged in it by the statute. Rev. Codes, § 6589. The default was entered through a mistake of counsel as to the date when the amended pleading was to be filed. His affidavit filed in support of the motion justifies the conclusion that his mistake was excusable. Mantle v. Largey, 17 Mont. 479, 43 P. 633; Pengelly v. Peeler, 39 Mont. 26, 101 P. 147.

The order is affirmed.

Affirmed.

SMITH and HOLLOWAY, JJ., concur.