
    W. A. Foote and another vs. Mary Branch.
    November 21, 1889.
    Refusal to open Default. — An order refusing to open a default to appear at the trial of the ease affirmed, as a proper exercise of discretion.
    Appeal by defendant from a judgment of the district court for St. Louis county and from an order by Stearns, J., refusing to open a default.
    
      James E. Markham, for appellant.
    
      Wm. B. Phelps, for respondents.
   Gilfillan, C. J.

This cause was on the calendar for trial at the term of the district court which met January 7, 1889. On January 9th the cause was reached in the call of the calendar, and, the defendant not appearing,- the plaintiffs proceeded with the trial by the court without a jury, and judgment for plaintiffs was directed upon findings of.fact and conclusions of law. Within three days afterwards the defendant applied on affidavits to have her default set aside, and the application was denied. The appellant claims that it was denied arbitrarily, and not in the exercise of the judicial discretion upon which trial courts are supposed to act in such cases. There is nothing in the record to support the suggestion. We see no reason to suppose that the court did not fairly and legitimately exercise its discretion. The case made by appellant’s affidavits was not a strong one. The only excuse for not appearing indicated by them was that she did not expect the cause to be reached for trial so early in the term. She was in no way misled. No reason appears why she supposed it might not be reached at any time after the court met. It was her duty to be prepared, whenever it should be reached.

Order and judgment affirmed.  