Plax v. Plax

At the close of the argument, Shaw, J.,

delivered the opinion of the court, Lawlor, J., and Olney, J., concurring.

[1]

The court is satisfied that the court below abused its discretion in refusing to set aside the default entered against the defendant. It appeared that the defendant was an ignorant man, unable to understand the English language well, that he did not read the summons nor understand its purpose or effect, and that within a few days after the service thereof, and before the time to answer had expired, he and his brother met and agreed upon a settlement of the matters set forth in the complaint. Naturally that would lead the defendant to suppose that it was not necessary for him to appear or defend the action, and it furnished a reasonable excuse for his failure to appear or answer the complaint. The application to set aside the default was made within less than twenty days after the default was entered. This was not an unreasonable time. Under the circumstances of the case the default should have been set aside and the defendant given a reasonable time to answer and proceed to the trial of the case on the merits.

The order refusing to vacate the default and the interlocutory judgment are reversed, and the case remanded to the court below with directions to allow defendant to file his answer and proceed to a trial on the merits.