
    Perkins v. Davis.
    Where a default is set aside on affidavit of merits, and the defendant thereVpon files a demurrer as well as an answer, it is not error under the code, to reject the demurrer.
    Appeal from Polk District Court.
    
   Opinion by

Williams, C. J.

In this case, when the canse was reached in order, the defendant, Iverving, failed to plead to the plaintiff’s action. Judgment "by default ivas entered against him. During the term, and on the sixth day thereof, the defendant filed liis motion with an affidavit of merits, to take off the default and open the judgment, whereupon the default was removed and the judgment set aside. The bill of exceptions, taken at the time shows that the default being set aside and the judgment opened, thereupon the defendant offered an answer to the merits of the petition of said plaintiff and also a demurrer to said petition, claiming as his right to answer or demur, as if default had not been entered. “ That thereupon ” tbe court ruled that the defendant be not allowed to demur to tbe plaintiff’s petition, but that he be required to answer to tbe merits only. To this ruling of tlie court, the defendant excepted. The only question presented for decision here by the assignment of error, is, as to the ruling of the district conrt, in refusing to allow the defendant to demur and requiring him to plead to the merits of the case, as presented by the complaint of the plaintiff.

The petition of the plaintiff presents a good and substantial cause of action against tbe defendant. Tbe defendant suffered judgment to be entered against him by default; at a late day of the term, be filed bis affidavit of defence on the merits, in consideration of which the plaintiff’s judgment, which had been obtained legally, by virtue of the rules of practice in the district court, was set aside, and he was suffered to come in, and by pleading issuably to make his defence on the merits.

It is provided in the code, that default may be set aside on such terms as the court may deem just, but not unless an affidavit of merits be filed and a reasonable excuse be shown for having made such default. Code 262, § 1827.

. The statute clearly confers a discretionary power on the court, as to the terms on which the default might be set aside, and the defendant allowed to make his defence on the merits. The exercise of this power is sanctioned, also, by general and long usage in jurisprudence. Where a discretionary power, so clearly consonant to the principles of equity, is reasonably exercised, so as not to operate oppressively upon the rights of a party, courts possessing the controlling jurisdiction of revision will not interfere to disturb the adjudication. To allow the defendant, after default and judgment, to come in and contest the plaintiff’s right to recover by filing dilatory pleas, or mere formal objections, founded in legal technicalities which did not effect meritoriously the facts, of which the plaintiff’s cause of action consisted, would be a violation of the spirit and intent of the statute, and long established practice. Such indulgence would tend to annoyance in the transaction of the business of the court, the subversion of the rights of the plaintiff and prevent the design of a judgment by default.

On the trial here, it was urged that the terms were not expressly imposed before the default was taken off and the judgment opened, and not until the demurrer was filed. That it was the duty of the court to announce the terms of opening the judgment -before the party was pex-mitted to offer his pleadings in defence of the action, so that he might elect to accept the terms and enter upon his defence, or let the judgment remain; we cannot see the force of this allegation. This he could do as well upon the filing of his pleas, as before he was suffered to make his defence. The. effect of the proceeding on his rights would be the same. But the record shows that the default being set aside, “thereupon” the demurrer and answer of the defendant were filed, and that “ thereupon,” the court ruled that he should not be allowed to demur. This being the statement of the proceeding, we consider that no substantial grievance was suffered by the defendant by reason of the action of the court, by which he was surprised and deprived of any of his legal rights. As the case stood, he was allowed to make his defence fully, so far as he could plead by answering to the facts upon which the plaintiff’s cause of action rested. This was all he had a right to do, in accordance with the rules of practice authorized by the statute, and uniformly recognized by the courts.

C. B. Darwim,, for appellant.

Perry & Bates, for appellee.

Judgment affirmed.  