Judgment was entered against the defendants by default. On their motion it was vacated with leave to answer. The plaintiff appeals.

*490 Upon the service of the summons the defendants engaged counsel. He prepared answers. Through inadvertence they were placed in his office files and were not served. Promptly upon notice of the entry of judgment this motion was made. There was no substantial prejudice to the plaintiff. The trial court exercised its discretion wisely, if it was properly invoked, in vacating the judgment and permitting a defense. Rodgers v. U. S. & D. Ins. Co. 127 Minn. 435, 149 N. W. 671, and cases cited.

But it is said that there was no affidavit of merits. The statute requires none. G. S. 1923, § 9283; G. S. 1913, § 7786. The court rule making such requirement may be waived if merits appear from the record as they do here. Grady v. Maurice L. Rothschild & Co. 145 Minn. 74, 176 N. W. 153; Dunnell, Minn. Dig. § 5020.

Order affirmed.