Kearney v. Palmer

Vacation of Default Judgment—General Rule as to Review of Discretion upon Appeal—Abuse—Border Line.—Under the general rule that the granting or denial of a motion to set aside a judgment by default is largely a matter of discretion to be exercised by the trial court, and that the action in granting or refusing the application will only be reversed where there is a clear abuse of discretion, it is held that while the present appeal from an order refusing to vacate a judgment by default appears to be near the border line, yet this court is unable to say, in view of the entire record, that the trial court abused its discretion in, denying appellants’ motion.

Id.—Reliance of Substituted Attorney upon False Statement of Clients.—Where it appears that a substituted attorney relies upon the false statement of his clients appealing that the demurrer had not been disposed of, they should not be allowed to complain of the result of their own false statements; and where there are several statements in their joint affidavits which are shown to be untrue, the court was justified in distrusting all of their statements.

Id.—Action to Quiet Title—Insufficient Affidavit of Defense— Defendants Mere Squatters on State Lands.—Where the complaint of the plaintiff showed a cause of action to quiet title to land owned by the plaintiff, and the affidavit of defense filed with the motion to vacate the judgment for the plaintiff by default merely denied plaintiff’s title upon information and belief, and clearly shows that defendants are mere squatters on land belonging to the state, with no title or claim of title to the premises sued for, it is held that this court, for that reason, is more readily inclined to affirm the action of the trial court in refusing to vacate the judgment.

Id.—Claim of Appellants That Original Attorney Misled Them— Conflict of Evidence.—Where there is a clear conflict of evidencg as to the claim of the appellants that they were misled by their original attorneys as to whether the demurrer had been overruled, this court must assume that the trial court in denying the motion resolved all conflicts of evidence against the appellants.