The question of mistake, inadvertence, surprise or excusable neglect was one presented to the Court below upon conflicting evidence and affidavits. It involved an inquiry into facts, which were only determinable by weighing the contradictory evidence and proof. Even upon an ordinary appeal, this Court will not disturb the findings of facts of the Court below, where the testimony is conflicting; much less will they do so where the action of the Court below is by statute made discretionary.
The case of Mann v. Provost, (3 Abbott's Pr. 446) is directly in point. " Where, upon a motion to open a regular judgmententered upon failure to answer, it appeared that an answer was prepared by defendant's counsel in due season, but not served for the reason that he believed plaintiff's proceedings to be irregular; that defendant's counsel made repeated efforts to see plaintiff personally to have the irregularity corrected, but was unsuccessful, and that he understood from plaintiff's attorney that no further steps would be taken until he could have an interview with the plaintiff: held, this was a case of surprise or excusable neglect," and the judgment was opened.
In Montgomery v. Ellis, (6 How. Pr. R. 326) it is held that the Courts have determined that the rule requiring stipulations or agreements to be in writing does not apply " when the party has been led to rely upon them."
In fact, although the rule is that oral agreements are not binding on attorneys, this has never been held to prevent the Courts from giving relief, (when they have discretion so to do) and the oral agreement, though relied on, has been violated. (Pope v. Dinsmore, 8 Abbott's Prac. Rep. 129.)
A general affidavit of merits on a motion to set aside a default is sufficient, and the facts constituting thedefense need not be stated. (Burrows v. Hillhouse, 6 Johns. 131; McKinstry v. Edwards, 2 Johns. Cases, 113, and see note " d" for analysis of whole question; Coggswell v. Vandenberg, 1 Caine, 156; Jones v. Young, 1 Dallas, 248; Briggs v. Bridges, 3 Johns. 448; Stevens v. Thompson, 1 Kernan Pr. 138; Dix v. Palmer, 5 How. Pr. 233; Ellis v. Jones, 6 Id. 296.)
In New York, the right to set aside a default, even to plead the Statute of Limitations, is expressly allowed. (Lovett v. Cowan, 6 Hill, 225-6; 10 Wend. 595; 4 How. Pr. 26.)
JUDGES: Cope, J. delivered the opinion of the Court. Field, C. J. concurring.
OPINION
COPE, Judge
This is an appeal from an order setting aside a judgment by default. The points in the case relate to the sufficiency of the affidavits upon which the order was based. It is contended that the affidavits do not sufficiently excuse the negligence of the defend ants, and are defective in failing to state the facts showing a valid and meritorious defense to the action. In making the order, the Court below was only required to exercise proper discretion; and the order must have been so plainly erroneous as to amount to an abuse of discretion, to justify interference on our part. We think it cannot reasonably be held that the discretion of the Court has been abused; and whatever may be our opinion of the strict propriety of the relief granted, we see nothing in the objections taken to authorize a reversal. It would have been better, perhaps, if the affidavits, instead of stating that the case had been fully and fairly represented to counsel, etc., in the usual form, had set forth the facts constituting the defense. We cannot, however, hold that the affidavits are insufficient in this respect, without departing from what is undoubtedly the settled practice, both in England and in this country. The Court below could have required a more specific statement, but whether it would do so or not was purely a matter of discretion.
Order affirmed.