
    SAMUEL T. LEET v. CONRAD GRANTS.
    Setting aside Judgment taken by Default. —An order to release a party from a judgment taken against him by default under the sixty-eighth section of the Practice Act, should only be granted upon the terms, as a condition precedent, of payment of all costs accruing to the adverse party to the time of service and filing of notice of motion therefor.
    Appeal from the District Court, Fourteenth Judicial District, Placer County.
    This was an action on a promissory note, on which the plaintiff recovered judgment as prayed, by default; whereupon execution issued and was levied on the property of the defendant. On motion then made on behalf of the defendant, based on affidavits showing that a valid defense existed to a part of the sum for which judgment had been rendered, and further, that said default suffered by defendant resulted from the miscarriage of the mails, and not from any willful neglect, of the defendant to interpose the same within time, the Court, by its order, set aside said judgment and gave the defendant leave to answer. The plaintiff moved as an amendment thereto that the granting of said motion be made only on the terms, as a condition precedent, that all of plaintiff’s costs in the action until then incurred, including the costs made on the execution, be paid by the defendant. The Court refused to so amend said order, and the plaintiff excepted to the order as made, and appealed.
    
      C. A. Tuttle, for Appellant.
    
      J. F. Hubbard, for Respondent.
   By the Court, Sprague, J. :

In granting the order setting aside the judgment entered by default, upon the facts presented as the basis of the motion, the Court below seems to have very properly exercised its discretionary powers; but such order should have contained the statutory prerequisite to its taking effect, that applicant pay all costs accruing to the plaintiff in the cause up to the date of the filing and service of the motion. (Sec. 68 Practice Act; Howe v. Independence Company, 29 Cal. 74.)

With such modification the order should be permitted to stand, respondent paying the costs of this appeal.

So ordered, and cause remanded for further proceedings.  