Spratly v. Putnam Fire Ins.

5 Kan. 155

• Court: Supreme Court of Kansas
• Decided: July 15, 1869
• Status: Published

Opinion

By the Court,

Sarrord, J.

This is a proceeding brought to reverse an order of the district court of Leavenworth county, setting aside a default made by the defendant in a cause pending in said court, and giving said defendant leave to file an answer to the plaintiff’s petition upon the payment of costs.

disobetiohaby mg DefauE. The application to open the default, and for leave to answer, was addressed to the diseretiou of the court and supported by affidavit, the object of which was to show that the defendant had a meritorious defense to plaintiff’s claim.

That the court had the power to allow an answer to be filed upon terms at any time before default cannot be questioned. [§ 114, Code 1859.] And we do not think that this power was in any manner affected by the mere entry of the default, and the order that the cause stand in its proper place on the trial docket for the assessment of damages.

The section referred to is certainly broad enough in its terms to justify such a construction, and we can see no good reason why it should not be given.

, This whole matter, then, of setting aside defaults and allowing answers to be filed after the time at which they may be due, under circumstances like those surrounding the case at bar, rest with the court in its discretion; and when such discretion has been expressed, the rule should obtain that a reviewing court will not interfere unless it shall appear that the court has abused its power.' 17 III, 474.

There is no claim that such is the case here; therefore the action of the district court must be affirmed.

All the justices concurring.