Crane

Suit for divorce, division of common property, etc. The question on appeal relates to the action of the court below in denying defendant’s motion to set aside a default entered against him and to vacate the judgment subsequently rendered on the ex parte application of plaintiff. Said motion was made in due season, and on the grounds of surprise and excusable neglect and that the default was entered before plaintiff was entitled thereto.

Defendant appeared in the action by attorney and his demurrer to the complaint was overruled- afterward, on June 27, 1896, the attorney for plaintiff, as appears from his affidavit used in opposition to defendant’s said motion, "entered into a verbal *100 stipulation with the attorney for defendant giving him a further week, ending Saturday, July 4, 1896, in which to answer.” On Monday, July 6th, an answer prepared and signed by defendant in person was served on the attorney for plaintiff and filed with the clerk of the court; but after service of such answer on him and before the filing thereof the plaintiff’s attorney caused the entry of-the default. The course taken by the attorney for plaintiff seems to have been the result of the…