#### GREENE, Respondent, v. ROWAN et al., Appellants.

(No. 1,733,)

(Submitted December 9, 1903.

Decided December 10, 1903.)

*Judgment on: the Pleadings*■— *Betting Aside*— Discretion— *Appeal.*

The power conferred by Code of Civil Procedure, Section 774, on the court to relieve a party from a Judgment, etc., taken against bim through Ms mistake, inadvertence, surprise, or excusable neglect, is discretionary, and its exercise will not be revised except for an* abuse thereof.

*Appeal'from District*Court, *Silver Bow County j-William Clancy, Judge.*■■

Action by Flora El Greene against Thomas Rowan and Nicholas Hughes.. From an order setting aside a judgment for defendants, they appeal.

Affirmed.

*264*Mr. J. E. 'Healy,*for Appellants.

*Messrs.'Boole & Clarke-,*and *Messrs. Busch & Kremer,*for Respondent.

MR. COMMISSIONER CLAYBERG

prepared tbe opinion for tbe court.

Tbis is an appeal from an order made by tbe court below setting aside a judgment on motion made pursuant to Section 174 of tbe Code of Civil Procedure, wbicb said judgment bad been entered upon a motion for judgment on tbe pleadings.

It appears from, tbe transcript that tbe attorneys for plaintiff took some proceedings to dismiss tbe case prior to1 or about tbe time when tbe motion for judgment on the pleadings was heard, and, relying on tbis action being effective, did not appear upon tbe argument of tbe motion. Counsel for appellants says that tbe proceedings taken by plaintiff’s attorneys to dismiss tbe case were not effectual, because tbe defendants’ costs were not paid) or tendered; that tbe court did right in hearing tbe motion for judgment on tbe pleadings, and committed error in setting it aside. Counsel for respondent claim that- whether tbe suit was actually dismissed or not by tbe action of plaintiff’s attorneys is entirely immaterial, as tbe application to set tbe judgment aside was made under Section 774 of tbe Code of Civil Procedure, and tbe court, in tbe exercise of tbe discretion vested in it by tbis section, decided to' set tbe judgment aside upon tbe payment of costs, wbicb tbe order appealed from recites were immediately paid.

There is no doubt but that the law is well settled that, tbe court below having beard tbe motion to set aside tbe judgment, and having exercised tbe discretion vested in it by Section 774, tbis court will not interfere with that decision unless tbe discretion of the court below was grossly abused, and that such abuse must be disclosed by tbe record. We cannot say that tbis record discloses such abuse.

*265We adopt tlie following language of this court used in .tbe case of *Eakins*v. *Kemper,*21 Mont. 160, 164, 53 Pac. 312: “From the earliest decisions of this court, thirty years ago, down to the very, latest, the principle has been established that it is within the legal discretion of ai trial court to set aside or to refuse to set aside a default and judgment thereon, and that, unless it appears that there has been an abuse of such discretion, it is the duty of this court to sustain, the district court. This was laid down in *Loeb*v. *Schmith,*1 Mont. 87, and has been followed in *Whiteside*v. *Logan, 7*Mont. 373, 17 Pac. 34; *Heardt*v. *McAllister,*9 Mont. 405, 24 Pac. 263; *Jensen*v. *Barbour,*12 Mont. 566, 31 Pac. 592; *Mantle*v. *Largey,*17 Mont. 479, 43 Pac. 633; and *Butte Butchering Co.*v. *Clarke,*19 Mont. 306, 48 Pac. 303.”

We advise that the order appealed from be affirmed.

Pee OubiaM.

For'the reasons stated in the foregoing opinion, the order appealed from is affirmed.