
    WILLIAM C. WISHART v. ALBERT L. KING.
    
    June 28, 1912.
    Nos. 17,588—(172).
    Vacating judgment.
    The trial court did not abuse its discretion in opening a judgment taken by default. [Reporter.]
    Action in the district court for Hennepin county to recover $1,468.80 damages to goods caused by fire occasioned through defendant’s alleged negligence. The case was tried before John Day Smith, J., (there being no appearance for the defendant), who made findings and as conclusion of law ordered judgment in favor of plaintiff for the amount demanded. Prom an order vacating the judgment and giving defendant leave to answer, plaintiff appealed.
    Affirmed.
    
      Harlan P. Roberts and W. S. Chase, for appellant.
    A. B. Darelius, for respondent.
    
      
       Reported in 136 N. W. 1135.
    
   Per Curiam.

Appeal by plaintiff from an order vacating on terms a judgment rendered by default against defendant. The question here is whether the trial court abused its discretion in granting the relief. We are all agreed that defendant offered but a lame excuse for failing to give attention to the summons and complaint served, but a majority of the court is of the opinion that under the well known rules governing the action of this court in such cases, the order appealed from should be affirmed.

The action is in tort, by a tenant against his landlord, for alleged negligence that is claimed to have caused a fire which destroyed and damaged personal property belonging to plaintiff. The damages, of course, were unliquidated, and conceding that the complaint states a cause of action, a court is naturally reluctant not to permit a trial upon the merits whenever any reasonable showing of mistake, surprise or excusable neglect is made. Our conclusion is that there was no abuse of discretion in opening the default, but under the circumstances no statutory costs will be allowed on this appeal.

Order affirmed.  