#### Johnson vs. Eldred.

An order refusing to set aside a judgment and to allow the defendant to answer, is an order affecting a substantial right, made upon summary application af-terjudgment, and is *appealable*under subdivision 2, sec. 10, chap. 264r of the laws of 1860.

The *discretion*to allow an answer to be made, or other act to bo done, after the time limited by law, spoken of in sec. 38, chap. 125, R. S. 1858, means a sound legal discretion, to be exercised so as to promote the ends of justice.

A defendant neglected to serve his answer until about a fortnight after it was due, when the plaintiff’s attorney refused to receive it and entered judgment. The defendant, with due diligence, applied to the court to set aside the judgment and allow him to answer, shewing by affidavits and a sworn answer that he had a good defense to the action and had intended to make it in time, and immediately after the service of process commenced making preparations for his defense, but that owing to a multitude of pressing engagements, which shortly afterwards unavoidably called him away from home and out of the stato during the time to answer, he mistook the day when the time to answer would expire. *Held,*that it was such a 'case of “mistake,” “inadvertence” or “excusable neglect,” as entitled the defendant to have the judgment set aside; and that an order of the circuit court refusing to set it aside and allow him to answer, was erroneous.

APPEAL from tbe Circuit Court for *Crawford*County.

Tbe case is stated in tbe opinion of tbe court.

*Levi Hubbell,*for appellant:

Tbe court should have opened *the*judgment, on tbe appli*483cation of ithe defendant, under tbe circumstances of tbis case. *Kane vs. Demarest,*13 How. Pr. R, 465. Refusal to do was error. *Fox B. V. B. B. Oo. vs: Shoyer,*7 Wis., 365-71. An appeal is tbe proper remedy. General Laws of 1860, cbap. 264, sec. 10, subd. 1 and2 ; *Beid vs Hibbard,*6 Wis., 176.

*O. B. Thomas,*for respondent: 1

Tbe application of the defendant to open the judgment was addressed *entirely*to tbe discretion of tbe circuit court; and an appeal does not lie from its decision thereon. *Fort vs. Bard,*1 Corns., 43 ; 2 Code R, 41; 3 id., 141; *Sherman vs. Felt,*3 How. Pr. R., 425 ; 4 id., 213; 1 Seld., 547 ; 2 Code R, 186 ; 1 Corns., 125, 533, 535; 2 id., 334, 186 ; 3 id., 334. Tbis is not such an order as is 'mentioned in sec. 10, cbap. 264, Laws of 1860. *Seeley vs. Chittenden,*10 Barb., 303. 2. Even if appealable, it will not be set aside unless there was gross abuse of tbe discretion of the court. *State vs. Lamont,*2 Wis., 437 ; *Hooe vs. Loclcwood,*3 Chand., 41; *Davis vs. Buggies,*2 id., 152; *Cook vs. Vandercook,*5"Wis., 107 ; *Barnes vs. Merrick,*6 Wis., 57.

*By the Court,*

Cole, J.

Tbis is - an appeal from an order of tbe circuit court of Crawford county, refusing to set aside a judgment of foreclosure, and to permit tbe appellant to answer and defend tbe action. ' Tbe summons and complaint were served by leaving copies at tbe residence of tbe appellant on tbe 24th of February, 1860, and a sworn answer was mailed at Milwaukee to tbe respondent’s counsel at Prairie du Ckien on tbe 12th of June, tbe day that judgment was entered up in tbe case for want of an answer. On tbe 13th tbe answer was tendered to tbe plaintiff’s attorney with tbe request to open tbe judgment, but tbe attorney absolutely refused to set aside tbe default and permit tbe answer to be filed on any terms. An application was then made to tbe circuit court, at tbe special term held in August following, to set aside tbe judgment; which application was founded upon tbe sworn answer and affidavit of tbe appellant, and tbe affidavit of Robert Menzies; all of which papers abundantly show — if tbe facts and statements set forth in them are true— that tbe appellant has a perfecj^and complete defense to tbe *484action, and further that be intended from the outset to make defense, and made some examination of facts preparatory to framing his answer, and actually prepared his answer as before stated, but not within the three months given by statute, owing to the fact that he had mistaken the day when the time to answer would expire. And the question is, pan he be relieved from the consequences of such a mistake, and did the circuit court properly refuse to set aside the judgment on the application made ?

In the first place it cannot be denied that this application to set aside the default was made at the earliest possible moment. No time was lost; no delay intervened in preparing affidavits explaining and excusing the default, and bringing the matter before the court. So it cannot be said that all due and proper diligence was not used by the appellant to repair his mistake, when he ascertained that the time to answer had expired. But it is said that this is a matter which we cannot review — that the question as to whether the judgment should be set aside and the defense let in, was one purely of practice, addressed entirely to the discretion of the circuit court, and that no appeal lies from the order of the circuit court upon that application, however erroneous it may be. We think, however, the order is appealable, within the spirit and meaning of subdivision two, section ten, chapter 264, Laws of 1860, being a final order affecting a substantial right, made upon a summary application after judgment. We assume, of course, that the answer sets up a complete defense to the action,.and that the affidavits show a case of *“*excusable neglect,” which points will be hereafter considered. That being the case, it seems almost too plain for argument, that the order refusing to set aside the judgment and to let in a good meritorious defense, was one affecting a substantial right. It may be said that a party’s right to make a defense is not unlimited, but depends upon his presenting his defense to the court in a proper manner, and within the time given him by law, and that if he does not do this, he can no longer claim it as a right, but must ask it as a *favor,*of the court where the judgment was rendered. But suppose a party, after the default has been entered, at *485tbe first possible opportunity comes into court, upon yits and papers wbicb folly excuse tbe default, and show good defense upon tbe merits, and moves tbat tbe judgment be opened, and be be permitted to defend tbe suit; but this application is erroneously, arbitrarily and oppressively, you please, denied; cannot tbe decision, under tbe Code, be reviewed by this court ? It seems to me tbat it- can be, and tbat such an order affects a substantial right, within the spirit and letter of tbat enactment. We have been referred to one or-two decisions in New York, where it is still held tbat such an order is not appealable, but we are not disposed to follow them. Our statute provides tbat tbe court may, in its discretion, and upon such terms as may be just, allow an answer or reply to -be made, or other act to be done, after the time limited by law, and may also, in its discretion, and upon such terms as may be just, at any time within one year after notice thereof, relieve a party from a judgment or order, or other proceeding against him, through bis mistake, inadvertence, surprise or excusable neglect. Chap. 125, sec. 88, R. S. By tbe discretion spoken of -here, is undoubtedly meant a sound, legal discretion — such action in tbe premises as will promote tbe ends of justice and protect tbe rights and interests of parties. An application to set aside a judgment should be granted or refused, as tbe ends of justice seem require. It evidently should not be granted unless tbe party shows tbat be has a good defense on tbe merits, and that the omission to plead or answer in due -time was tbe result accident or mistake, without any culpable negligence on bis part. But when a party brings himself within this rule, tbe application should be granted; and an order refusing it, we think, affects a substantial right and is appealable.

But upon this question, as to whether tbe answer in tbe present case, supported as it is in one very important particular by tbe affidavit of Menzies, sets up a good legal defense or not, there is no room for doubt. Eor it is very apparent tbat if tbe notes and mortgage, upon wbicb tbe judgment of foreclosure was entered, were never delivered by the appellant, and if tbe respondent wrongfully obtained possession of them from' Clark, in whose hands they had been placed to *486aS an *escrow*'an^ tbe title of tbe mortgaged premises made clear and perfect by tbe respondent — a condition which it is alleged bas not been performed — then tbe entire foundation for tbe action falls. Tbe mortgage not baying been delivered, tbe respondent can claim no rights under it. Neither can be have greater rights under it if be bas wrongfully obtained possession of tbe mortgage from Clarke. He certainly ought not to bring an action and recover tbe amount secured by it, for tbe plain and obvious reason that tbe mortgage was not to take effect until a certain condition was performed, namely, tbe title made clear and perfect by tbe mortgagee, which it is distinctly alleged bas not been done. We therefore think tbe answer sets up a good defense to tbe action.

It is insisted that tbe appellant’s affidavit shows no valid or sufficient excuse for not preparing and serving an answer within time. Upon this point tbe appellant states, in substance, that when tbe complaint and summons were served, it became necessary for him to make examinations and inquiries at Prairie du Cbien and other places, to ascertain tbe facts preparatory to bis defense ; that be set about tbe same immediately, but that soon afterwards be was compelled to go to Detroit and other places.in Michigan upon important business, and to be absent from home several weeks; that after Ms return from Michigan be was obliged by pressing business to go to Chicago and to remain there several weeks; that be was engaged extensively in tbe manufacture of lumber in Wisconsin and Michigan, and in tbe sale thereof at Chicago, and was unavoidably occupied in tbe management of said business during tbe period to answer; that be constantly intended to prepare bis answer in tbe action, and to have tbe same served in tbe time limited therefor by tbe statute;, but that owing’to bis absence from tbe state, and bis arrangements aforesaid, *he mistook*tbe day when tbe said time was to expire.

It appears to us that this shows such a case of “ mistake,” “inadvertence” or “excusable neglect” on tbe part of tbe appellant, as to tbe time in wMcb be could prepare and serve Ms answer, as should have entitled him to have tbe judg*487ment set aside, and make Ms defense. He states that in consequence of the multitude and pressing character of engagements, unavoidably calling Mm from home, and without the state, he mistook the precise time which he had to answer. This seems to us very natural and very probable. That he intended making his defense is obvious from the fact that he caused his answer to be drawn up and served on the 13th of June, about a fortnight after the period fixed by statute to answer had expired. And the mistake as to the time was not so great but that any man, the most vigilant and prudent, might have made it *under like circumstances.*And to say that for such a trifling error as to time, in a case where *personal service*of the complaint and summons was not had, a party can have no relief upon any terms whatever, but must lose the benefit of a good and meritorious fense, appears to u§ to establish an unnecessarily strict rule of practice.

April *10.*

We think the circuit court, upon the answer and affidavits presented, should have taken off the default, upon such terms as it might consider just and equitable. We shall therefore reverse the order refusing to open the judgment and permit the appellant to come in with Ms answer, and send the case back to the circuit court, with directions to set aside the default upon such terms as to that court may seem just and equitable.

Order reversed, and cause remanded for further proceedings in accordance with this opinion.

The defendant having also appealed from the *judgment*of the circuit court in this cause, Justice Cole delivered the opinion of the court, as follows:

*By the Court,*Cole, J. TMs is an appeal from a final judgment in a foreclosure suit, entered on the 12th .of June, 1860, for want of an answer. In a case just decided between these parties, which was an appeal from an order refusing to set aside this judgment and permit the appellant to come in and defend the action, we held that the judgment should have been set aside. Still, that was an order after judgment, and was an independent appeal. In this case we can dis*488cover no error upon the record, and the judgment of the cir-court must be affirmed, subject, however, to the power 0f that court to set the same aside, according to the directions in the former appeal, and expressly saving to the appellant all his rights upon reversing that order.

Judgment affirmed.