
    (June 27, 1921.)
    GEORGE P. BITNER, Respondent, v. EWEN McINTOSH, Appellant.
    [198 Pac. 317.]
    APPEAL from the District Court of the First Judicial District, for Shoshone County. William W. Woods, Judge.
    Action for contribution from cosurety upon a bond. From an order denying a motion to vacate the judgment appellant appeals.
    
      Reversed.
    
    James F. Ailshie, for Appellant.
    The discretionary power of the court to vacate a judgment means a sound and impartial discretion, and should be resolved in ease of doubt in favor of the application. (Hamilton v. Hamilton, 21 Ida. 672, 683, 123 Pac. 630; Estate of Pittock, 15 Ida. 47, 96 Pae. 212; Humphreys v. Idaho Gold Mines Dev. Go., 21 Ida. 126, 120 Pac. 823, 40 L. R. A., N. S., 817; Utah Commercial and Savings Bank v. Trumbo, 17 Utah, 198, 53 Pac. 1033; Cutler v. Haycock, 32 Utah, 354, 90 Pac. 897; Watson v. San Francisco & H. B. B. Co., 41 Cal. 17; 15 Ency. of PI. & Pr. 286; 1 Black on Judgments, p. 554; Parks v. Coyne, 156 Mo. App. 379, 137 S. W. 335; Miller v. Carr, 116 Cal. 378, 58 Am. St. 180, 48 Pac. 324; Vermont Marble Co. v. Black, 4 Cal. Unrep. 901, 38 Pac. 512, 961; Bailey v. Taaffe, 29 Cal. 423.)
    James A. Wayne and H. E. Worstell, for Respondent.
    EVery presumption is in favor of the order of a trial court denying an application to vacate and set aside a default judgment. (Security Loan & T. Co. v. Estudillo, 134 Cal. 166, 66 Pac. 257.) This is especially true when the facts upon which the application to set aside such judgment is based are in dispute. (J. L. Mott Iron Works v. West Coast E. Supply Co., 113 Cal. 341, 45 Pae. 683.)
    The showing made by defendant on his application to vacate and set aside the judgment herein did not show that such judgment was taken through his mistake, inadvertence, surprise or excusable negligence, and was insufficient to justify the vacation of said judgment. (Domer v. Stone, 27 Ida. 279, 149 Pac. 505; Valley State Bank v. Post Falls etc. Water Co., 29 Ida. 587, 161 Pae. 242; Nelson v. McGoldrick Lumber Co., 30 Ida. 451, 165 Pac. 1125.)
   MCCARTHY J.

On the facts shown in the record the order of the district court denying appellant’s motion to vacate the judgment was an abuse of judicial discretion. Accordingly that order is reversed and the cause remanded, with instructions to vacate the judgment and for such further proceedings as may be appropriate. Costs awarded to appellant.

Rice, C. J., and Budge, Dunn and Lee, JJ., concur.  