The plaintiff brought an action against the defendant for an alleged balance due on a sale of some apricots.

The complaint was filed on the fifth day of January, 1884, and summons served on the eighth day of the same month and year. On the eighteenth day of February of that year a default was entered and a judgment rendered in favor of the plaintiff for the amount of his demand and costs. Upon that same day a notice of motion was served and filed to set aside the default and judgment, in these words: —

[Duly verified.]

[Duly verified.]

Upon the hearing of the motion, its counsel stated that the defendant had prepared a verified answer to the complaint, which was then and there offered to be filed,. *465 if the court would allow it, after setting aside the default and vacating the judgment.

The court denied the motion, and from the order made therein, and the judgment rendered against it, the defendant appeals.

It appears by the record, from a letter dated February 5, 1884, of one of the plaintiff’s attorneys, that the defendant was granted until the 11th of February, 1884, in which to answer; that on the ninth of the same month this time was extended “to and to include February 17, 1884.”

The affidavits of merit were sufficient in form and matter, and the stipulation under consideration, had it been entered or filed in accordance with subdivision 1, section 283, Code of Civil Procedure, would have entitled the defendant to have answered at any time on Monday, the eighteenth day of February, 1884 (Code Civ. Proc., secs. 10, 12,13), since the seventeenth day of February, 1884, fell on Sunday, which was a holiday, and that which was fixed in the stipulation to be performed on that day (viz., the filing of the answer) could have been done on the next day, which was Monday, the eighteenth day of February, 1884.

It was not filed or entered, and was not, therefore, legally binding upon the trial court. Nevertheless, the parties defendant seem to have relied upon it in good faith as a stipulation, which gave them the right to answer the complaint on the said eighteenth day of February. .

They appeared at once in court on the same day that default was taken, and offered to file an answer then and there if permitted.

Under all the circumstances of this case, it would seem that it was one in which a wise discretion might have been exercised in granting the defendant’s motion.

Therefore, we think that the judgment and order *466 should be reversed, and the defendant given a reasonable time in which to answer the complaint.

Belcher, C. C., and Searls, C., concurred.

For the reasons given in the foregoing opinion, the judgment and order are reversed, and cause remanded, with leave to defendant to answer within a reasonable time.