
    Frederick B. Lathrop vs. James S. O’Brien.
    November 30, 1891.
    Belief against Default. — Held, that the court below did not err when setting aside a judgment entered on default, and permitting defendant to answer.
    Plaintiff, on January 5, 1891, recovered judgment of $534.72 against defendant, in the district court for Washington county, on defendant’s failure to answer, the summons and complaint having been personally served December 12,1890. Defendant moved, on affidavits and a proposed answer, to set aside the judgment and for leave to answer, the affidavits showing, among other things, that about the middle of December, 1890, the defendant employed an attorney resident at Stillwater, who prepared the answer, and on January 2, 1891, sent it by mail to Minneapolis to Frederick B. Lathrop, plaintiff’s attorney, who resided in that city, and by whom it was received on January 3, 1891, and was returned because not served in time; that the defendant’s attorney believed the answer was sent in time, and, if not in time, it was by reason of mistake on his part as to when the time for answering expired. The motion was opposed by plaintiff on the ground (among others) that the answer was sham, and that the default was not excused, but was granted by Williston, J., and the plaintiff appealed.
    
      
      Fred. B. Lathrop, for appellant.
    
      G. P. Gregory, for respondent. ■
   Collins, J.

Plaintiff appeals from an order vacating a judgment in bis favor entered on default, and permitting an answer. The defendant’s laches was sufficiently excused, aind the proposed answer, although somewhat loosely drawn, upon its face stated a defence, the truth or falsity of which could not properly be determined upon conflicting ex parte affidavits, on plaintiff’s contention that the proposed answer was sham. There was no abuse of discretion on the part of the court granting the order appealed from.

Affirmed.

jSTote. A motion for a reargument of this case was 'denied December 17, 1891.  