October 29, 1889.
Review of Order Opening Default. — An order of the trial court opening a default and extending the time to answer will not be disturbed on appeal except for an abuse of discretion.
Oh October 30,1888, plaintiff recovered judgment of $400 in the district court for Stearns county, for defendant’s failure to answer. On January 25,1889, after notice and hearing, an order was made by Searle, J., setting aside the judgment and allowing defendant to answer within 20 days from that date, on his payment of $10 costs and also the plaintiff’s disbursements, to be taxed by the clerk. On March 15, 1889, the defendant obtained an order to show cause why his *527time for complying with the conditions of the order of January 25th •should not be extended to March 23d. This order was made on an affidavit of defendant’s attorney to the effect that on January 27th he received the order of January 25th, and laid it on his desk, intending at once to comply with it; that on January 31st he received a telegram announcing his father’s death, and in response thereto left home on the same day, and in his anxiety forgot the order; that he returned home February 21st — as soon as he could — and the matter of the order escaped his recollection until March 6, 1889, when he found the order in a pile of papers on his desk; that plaintiff’s attorney was then absent, attending court in another county, and on his return the affiant asked him to waive the time and accept service of the answer, on defendant’s compliance with the conditions of the order, with which request the plaintiff’s attorney did not comply. After a hearing on the order to show cause, an order was made on March 19th, extending for ten days from that date the time for serving the order of January 25th and complying with its conditions. 'From the order last made the plaintiff appeals.
Osear Taylor, for appellant.
D. W. Bruckart, for respondent.
The order appealed from is a discretionary order extending the time previously allowed defendant to answer and to pay costs. It was made upon notice, and upon cause shown. Such orders will not be revised by this court except in clear cases of abuse of discretion, which is not the case here.
Order affirmed.
41 Minn. 526
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