Mantle v. Largey

43 P. 633, 17 Mont. 479, 1896 Mont. LEXIS 18

Opinion

De Witt, J.

We are very clearly of opinion that this order must be sustained. Such orders are largely in the discretion of the trial court. There surely was no abuse of discretion in this case. The two cases were filed under the same title, and involved the same subjects. They were in different depart-, ments of the same court. Defendant’s counsel was informed that he (defendant) had been sued in the matter of the relations of the parties to the Speculator mining claim. As counsel did not understand that there were two suits, and as he,did find one, and appeared therein, we think that it was excusable neglect that he did not discover the other suit, by the same title, involving to some extent the same subjects, and in the other department of the court. It is true that defendant’s counsel did not make application to be allowed to appear in this case at once upon discovering that the time for appearing had expired. But we are of opinion that it fairly and honestly appears that he omitted to do so wholly by reason of negotiations pending between the parties.

Argument has been made upon the construction of the language used in the affidavits of the defendant and his counsel. But we are of opinion that the whole matter fairly appears as above recited. Under those facts, the order of the district court, setting aside the default and the judgment, must be sustained.

Affirmed.

Pemberton, C. J., concurs.