Westphal, Hinds & Co. v. Clark

I. After the reversal of the cause by this court, counsel for appellee wrote counsel for appellant requesting him to write to them upon the receipt of the procedendo before taking further steps in the court below, as they desired to appear and answer before the referee, or to make a motion for leave to do so. The letter was answered. The answer has been lost or mislaid. Counsel for appellant, in an afiidavit filed in the case, says: “ I understood, from the letter referred *264to, that I was to take no further steps in the ease without notifying them; that I was to take no advantage of them — and in writing my letter to them this is all I intended to consent to and all I understood they required.” He further states that the notice to show cause why execution should not issue gave appellee all the notice necessary to protect his rights. Counsel for the respective parties reside one hundred miles from each other.

Under these circumstances we think the case should be considered as though appellee had appeared upon the filing of the procedendo, and made this showing for leave to answer as garnishee. Indeed, we do not understand from the argument of counsel for appellant that it is claimed that the formal entry of judgment concludes appellee. The argument is mainly based on the rights of plaintiffs because of appellee’s failure to appear before the referee and answer in obedience to the notice.

1. pjbactici!: deíauit® ° II. It is conceded in argument that the opening of a default is a matter largely within- the legal discretion of the court, and that this discretion should not be interfered with upon appeal, excepting in cases where it is clearly shown that such discretion has been improperly exercised. Most of the cases where it has been held that this discretion has been abused are where the motions to set aside defaults have been refused. The rulings have, therefore, generally been favorable to allowing a trial upon the merits, where there has been a reasonable excuse shown for the default. And as there never should be an objection to a fair trial upon the merits to those who are reasonably diligent, it should require a stronger case for an ajipellate court to interfere when a right to such trial has been given than where it has been denied.

2..-: gar-failure<c£ gar-pear. III. The showing in this case, it seems to us, was sufficient to warrant the court in setting aside the default. We need not set out such showing. The excuse was that appellee was unable to make the journey and give ms answer before the referee, by reason of sickness, on the day named in the notice. We do not think *265that the statement that he was also advised by his attorneys that it was not necessary that he should’appear should be conclusive against him. This seems merely to be stated as an additional reason why he did not make the journey.

IY. The answer which appellee has filed is voluminous. Without passing upon its sufficiency, it is enough to say that permission having been given to answer, we do not think the answer shows upon its face that appellee was indebted to David Clark at the time of the service of notice of garnishment, so that appellants can take judgment upon the answer. We think the order of the court vacating the default and setting the case down for hearing upon the answer was not erroneous. The same will be affirmed, with leave to appellants to take such action upon the answer as they may deem proper.

Aeeirmed.