Payne v. Savage

94 P. 750, 51 Or. 463, 1908 Ore. LEXIS 64

• Court: Oregon Supreme Court
• Decided: March 31, 1908
• Status: Published

Opinion

Mr. Chief Justice Bean

delivered the opinion.

An application to set aside a default or for permission to plead after the time allowed by law has expired, is addressed to the sound discretion of the trial court, and its action thereon will not be disturbed on appeal, unless there is an abusé of discretion. This rule has so often been declared and applied by this court that it is useless to cite authorities. Each case must depend on its own peculiar facts. Upon the showing made by plaintiffs this court would not be justified in holding that the trial court abused its discretion in denying the application. Plaintiffs’ attorneys were familiar with the rules and practice of the court, and knew, or were chargeable with knowledge, that it would be in session at the time the answer in the action brought by them against the defendant was due. It was their duty to have appeared within the time required to plead to the answer, to take such action as they might desire, or the court would permit. Their failure to do so was not caused by a mistake or misunderstanding as to when the answer was due, or as to the term of court. The showing made indicates that they were negligent in not observing the requirement, of the statute, and the excuse offered was not such as to require the court, in exercise of a sound discretion, to relieve them from the consequences. It might properly have done so, but its denial of the motion was not such an abuse of discretion as should be disturbed on appeal: Horn v. United Securities Co. 47 Or. 35 (81 Pac. 1009).

Judgment affirmed. Affirmed.