Ratliff

On August 20, 1928, default of plaintiff was entered for failure to answer defendant’s cross-complaint. Thereafter on December 11, 1928, and pursuant to said default, judgment on the cross-complaint was entered. On February 19, 1929, pursuant to notice given, cross-defendant presented to the court a motion that the said default and judgment be set aside and that the execution on the judgment be recalled and quashed. The grounds of motion were that the default and judgment and execution had been taken against cross-defendant through his inadvertence, surprise and excusable neglect; and that the judgment was void for the reason it was rendered on a counterclaim. The motion was heard upon affidavits by the respective parties. At the same time cross-defendant moved that he be permitted to file answer to cross-complaint nunc pro tunc as of February 12, 1929. These motions having been denied, said cross-defendant appealed from each of said orders of denial.

The first contention of appellant is that there was an abuse of discretion in the court’s failure to grant relief from the default and judgment. Such applications for relief must be made within a reasonable time, but in no ease…