Mulligan

Appeal from judgment. It is claimed by defendant that the court erred in denying his motion to dismiss the action, and in ordering his default entered after denying the motion.

The action was brought to recover on a judgment, and was commenced May 29, 1896.

The summons was issued May 22, 1897, and served March 24, 1898. On April 23, 1898, the defendant gave notice of motion to vacate and set aside the service of the summons, and for an order dismissing the action on the ground of want of diligence in prosecuting the same. Affidavits were filed by both parties, and, after various continuances, the matter was finally submitted, and the court, on August 25, 1898, made the order denying the motion.

We have examined the affidavits used on the hearing, and do not think the court abused its discretion in denying the motion. These motions are addressed to the sound legal discretion of the court below, and it would require a very plain case of abuse of discretion to justify us in reversing the order. Certainly the time that elapsed in this case would not show such an abuse of discretion. The summons was issued within the year and served within less than a year thereafter. No injury…