FREEMAN v. BROWN

[No. 6,616. Department No. 1.] FREEMAN v. BROWN. Setting aside Default—Discretion of Court. Appeal from an order setting aside a judgment by default, in the Fourteenth District Court, County of Placer. Rear-don, J. An order was made in the Court below, overruling defendant’s demurrer, and allowing him twenty days to answer; and at the same time, (as appears by an extract from the minutes) by consent, it was ordered that the case be continued for the term. The defendant failing to answer within the twenty days allowed, a judgment by default was entered against him, which was afterward set aside by the Court. The affidavit upon which the default was opened was by the defendant’s attorney, and was to the effect that the demurrer was not heard on the first day of the term, as was the usual practice of the Court, but was called up upon special notice at a later day; that it was the custom of affiant to take memoranda of orders made at the beginning of the term, but that, for the reasons above stated, he failed, through inadvertence to make any memorandum of the order in question; that affiant was engaged in other matters during the remainder of the term—forgot all about the case; that defendant had stated the facts constituting his defense to affiant, as stated in the proposed answer filed with the affidavit, and that affiant engaged and fully intended to file an answer, etc. The stipulation referred to in the opinion was for the entry of the order for the continuance of the case referred to above. J. M. Fulweiler, and C. A. Tuttle, for Appellants. Hale & Craig, for Respondent. [MAJORITY — By- the Court :] By- the Court : "We are inclined to think that the Court had authority to consider the stipulation in connection with the affidavit, and that the stipulation and affidavit justified it in making the order. We will affirm this order. Order affirmed.