
    Elias J. Crandall, Plaintiff in Error, v. J. B. P. Piette and Green C. Davidson, Defendants in Error.
    
      Error to Yamhill.
    
    Where there is judgment by default in a lower court, it is wholly a matter of discretion for the appellate court to permit, or refuse, the filing of an answer, or making defence.
    This suit was commenced before a justice of the peace, and judgment taken by default. Plaintiff in error appealed to the District Court, and when this case was called up for trial, applied for leave to file the following answer: “ That on the 28d day of January, 1854, before E. D. Harris, a justice of the peace in and for the county of Yamhill, a trial was had and judgment rendered in favor of the said defendants, on the same cause of action upon which the present action was brought.”
    Objection was made by the plaintiffs, and the court refused the leave as prayed for, but granted leave to the defendant to answer to the merits. The refusal of the court to allow the said answer to be filed is the alleged error.
    
      JD. JLogan, for plaintiff in error.
    
      H. Huber, for defendants in error.
   Williams, C. J.

Defendant allowed judgment to go against him by default before the justice, and could not, for that reason, afterwards appear* and defend as a matter of right; his application, therefore, for leave to answer, was addressed to the discretion of the District Court. That court, in the exercise of such discretion, might allow, or refuse altogether the application, or might grant it, upon such terms as in its judgment were just under the circumstances. We cannot, as a general practice, overrule the exercise of discretion by the District Court, and if we could, there is no very apparent error in refusing to remove a legal bar to plaintiff’s defence, simply to enable him to interpose a legal bar to the plaintiff’s right of recovery.

Judgment affirmed.  