
    VOELKER, Respondent, v. GOLDEN CURRY CON. MINING CO. et al., Appellants.
    (No. 2,762.)
    (Submitted February 8, 1910.
    Decided February 21, 1910.)
    [107 Pac. 414.]
    
      Judgments by Default—Vacation—Excusable Neglect—Discretion.
    
    1. Held, that the district court did not abuse its discretion in setting aside a default judgment, where counsel for plaintiff, owing to excusable-neglect, had failed to file an amended complaint within the time allowed after defendant’s demurrer to the original pleading had been sustained.
    
      Appeal from District Court, Jefferson County; J. B, Poindexter, Judge.
    
    Action by Christopher Voelker against the Golden Curry Consolidated Mining Company and another. From an order setting aside a default judgment, defendants appeal.
    Affirmed.
    
      Mr. Lincoln Working and Mr. Charles J. Geier submitted a brief in behalf of Appellants. Mr. Working argued the cause orally.
    In behalf of Respondent, there was a brief and oral argument by Mr. PL, S. PLepner.
    
   MR. CHIEF JUSTICE BRANTLY

delivered the opinion of the court.

Appeal from an order setting aside a judgment entered upon the default of plaintiff in failing to file an amended complaint within the time allowed therefor after defendant’s demurrer to the original complaint had been sustained.

As has been often said by this court, an application to set aside a default is addressed to the discretion of the district court, and its action thereon will not be revised by this court unless it is manifest that its discretion has been abused.' We have examined the showing in support of the motion, and cannot say that the district court abused the discretion lodged in it by the statute. (Revised Codes, sec. 6589.) The default was entered through a mistake of counsel as to the date when the amended pleading was to be filed. His affidavit filed in support of the motion justifies the conclusion that his mistake was excusable. (Mantle v. Largey, 17 Mont. 479, 43 Pac. 633; Pengelly v. Peeler, 39 Mont. 26, 101 Pac. 147.)

The order is affirmed.

Affirmed.

Mr. Justice Smith and Mr. Justice Holloway concur.  