Benedict v. Spendiff
Montana Supreme Court
Appeal from, Third Judicial District, Yellowstone County. A motion to open tbe default was denied by Liddell, J. The matter of setting aside or refusing to set aside a default rests much in the discretion of the court below; yet the discretion is not a mental discretion to be exercised ex gratia, but is a legal discretion, to be exercised in conformity with law.
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Appeal from, Third Judicial District, Yellowstone County. A motion to open tbe default was denied by Liddell, J. The matter of setting aside or refusing to set aside a default rests much in the discretion of the court below; yet the discretion is not a mental discretion to be exercised ex gratia, but is a legal discretion, to be exercised in conformity with law. (Bailey v. Taaffe, 29 Cal. 423.) As a general rule, when the circumstances are such as to lead the court to hesitate upon a motion to open a default, it is better to decide in favor of the applicant. (Watson v. San Francisco &…
1Opinion of the CourtDe Wolfe, J.
Appeal from a judgment of the Third District Court rendered against the defendant on default. The record shows that the defendant was served, or admitted service of summons, on the third day of April, 1889; and failing to answer or demur to the complaint within the time allowed by law, the 15th of the month, plaintiff took a default and judgment against him. On the same day the defendant filed a motion and affidavit to open the default. The affidavit alleges that the defendant was the sheriff of Yellowstone County, and while in the discharge of his official duties, on the day following the…
Also in this document: Concurrence.
2Cases cited3 opinions
- Watson v. Francisco & Humboldt Bay RailroadCalifornia Supreme Court · 1871
- Whiteside v. LoganMontana Supreme Court · 1888
- Donnelly v. ClarkMontana Supreme Court · 1886
3Cited by6 opinions
- Nash v. TreatMontana Supreme Court · 1912
- Greene v. Montana Brewing Co.Montana Supreme Court · 1905
- Southwestern Surety Ins. v. TreadwayMississippi Supreme Court · 1916
- Carter v. Badrock RFDMontana Supreme Court · 2021
- Matthews v. Don K ChevroletMontana Supreme Court · 2005
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