Schiffman v. Robison

195 P. 816, 99 Or. 410, 1921 Ore. LEXIS 66

• Court: Oregon Supreme Court
• Decided: February 23, 1921
• Status: Published

Opinion

McBRIDE, J.

1. The granting or refusing a motion to set aside a default is a matter resting in the sound discretion of the court and should not be disturbed, unless that discretion has been abused: Lovejoy v. Willamette Locks Co., 24 Or. 569 (34 Pac. 660); Horn v. United Securities Co., 47 Or. 35 (81 Pac. 1009).

2. There was no such abuse of discretion here. The affidavit of defendant was contradicted by the return of the sheriff, as to the county in which defendant was served, and was contradicted by the affidavits of Mr. and Mrs. McGrath in other material particulars. The defendant’s letter to McGrath indicated a disposition to delay and harass plaintiff, rather than an intention to make a bona fide defense. In fact, nearly two weeks elapsed before a motion was made for a default. The defendant failed to furnish the filing fee required, which the affidavits of Mr. and Mrs. McGrath show he was informed must be advanced by him. He was not diligent, and must abide the consequences.

The decree of the Circuit Court is affirmed.

Affirmed.

Burnett, C. J., and Benson and Harris, JJ., concur.