Wylie

The plaintiff brought this action to recover a certain sum of money alleged to be due him from the defendant. An amended complaint was filed November 7, 1896. To this complaint defendant filed a general demurrer, which was overruled November 23d, and ten days allowed to answer. No answer having been filed, on December 4th, upon application of plaintiff’s attorney, the clerk of the court entered the default of the defendant, and immediately thereafter entered judgment for the amount prayed for in the complaint. Thereafter, on the same day, counsel for defendant served and filed notice that he would move the court, on a day named, to set aside the said judgment and permit the defendant to answer the complaint, upon the ground that the judgment was taken against the defendant by surprise, in this, that the plaintiff had extended the time to answer to December 8th, as set forth in an affidavit annexed to the notice, and which was made by E. C. Lane, the president and business manager of the defendant.

The motion was submitted December 11th and denied December 14th, and thereupon the defendant appealed from the said judgment and order.

At the hearing the defendant introduced and…