v. Decrow, 132 Cal. 312, 64 Pac. 397; Bonelli v. Jones, 26 Nev. 176, 65 Pac. 374.)

The language of the plaintiff's acceptance of the condition is: "And this plaintiff does hereby remit all damages in excess of," etc. The reservation, expressed in the form of a condition, is in fact no condition, but the reservation of an exception expressive of an intention to question the power of the court to make the order at all. If he had this right to question the court's power, he had it without the reservation; but he could not comply with the condition imposed and still say the court had no power to impose it. He could not say, "I accept the advantage offered me of avoiding a new trial, but I will proceed to test the question whether the court had the power to grant me this advantage; and if I find that the power does not exist, I will be the gainer to the amount of $3,500, while my adversary, if he chooses to submit to the order, becomes the loser to this amount." The only course open to him was to waive all irregularity in the proceedings on the motion and comply with the order, or to refuse to comply at all. He would then have been in a position to question the regularity of the proceedings on the motion anterior to the order. As it is, he cannot be heard to say that the order in his favor made so by his own act of acceptance of its conditions, is not binding upon him, or that he is aggrieved by it. Taking either view of the case, the plaintiff's contentions are without merit. If the order did not by his act become absolute, the appeal is premature, and defendant's motion to dismiss it must be sustained. If it did become absolute, the order is in his favor, made so virtually by his consent, and hence he cannot say that he has been aggrieved by it. The situation is anomalous, to say the least, and not without difficulty; but we are not disposed to adopt a view which recognizes a right in litigants to juggle with a court, as plaintiff has shown a disposition to do in this case. We hold that by filing his acceptance, couched in the terms it is, the plaintiff waived any irregularity in the proceedings on the motion, and that, having thereby avoided

another trial, he has no grievance which he may submit to this court. The appeal is therefore dismissed on this ground.

There may be some question whether the court may, in such a case as this, grant a new trial upon the issue of damages only. This question does not arise here, and as to it we venture no opinion.

MR. JUSTICE HOLLOWAY concurs.

Dismissed.

MR. JUSTICE SMITH: My opinion is that when the plaintiff agreed to accept $4,000, provided the court had jurisdiction to make the order, he reserved no substantial right, but only an abstract question of law. The matter of how that legal question should finally be decided bore no relation to the fact question as to what amount would compensate plaintiff for the injury suffered by him. It was purely a speculation on his part. I therefore concur in the foregoing disposition of the case.

PENGELLY, APPELLANT, v. PEELER, ADMINISTRATOR, RE

SPONDENT.

(No. 2,644.)

(Submitted April 7, 1909. Decided April 16, 1909.)

[101 Pac. 147.]

Default Setting Aside - Discretion - Pleadings-Answer —
Denials.

General Denial-When Proper.

1. A general denial is proper in cases where the pleader has theretofore generally or specifically denied certain allegations of the complaint, as also where he has denied any knowledge or information sufficient to form a belief as to the truth of particular allegations, and has specifically admitted others.

Denial on Information and Belief-Sufficiency.

2. Where defendant denied, as to certain specified allegations of the complaint, that he had "any knowledge or information [thereof] suficient to form a belief," the omission of the word "thereof," used

in section 6540, Revised Codes, authorizing denials on information and belief, was immaterial.

Default-Setting Aside-Answer-Affidavit of Merits--Inconsistency.

3.

The complaint in an action to recover on a claim against an estate, alleged, inter alia, that the plaintiff had duly presented her claim to the administrator in writing, supported by affidavit as required by law. The default of the administrator having been entered, defendant, on motion to set aside the default, tendered a proposed answer containing a general denial. In his affidavit of merits he stated that the claim delivered to him had not been verified as prescribed by law and was therefore not a legal claim against the estate. Held, that the answer was not so inconsistent with the statements in the affidavit as to warrant the court in refusing to set aside the default. Same-Setting Aside-Discretion-Terms.

4.

In setting aside a default judgment, on a showing that defendant's attorney, through mistake and inadvertence, failed to file an answer within the time allowed by law, where the party in default moved promptly to vacate the judgment and appeared to have a good defense to the action, the court did not abuse its discretion; nor did it err in not imposing terms.

Appeal from District Court, Flathead County; J. E. Erickson, Judge.

ACTION by Catherine Pengelly against D. R. Peeler as administrator of Jacob Fine, deceased. From an order setting aside a default judgment, and permitting defendant to answer, plaintiff appeals.

Affirmed.

Mr. Charles W. Pomeroy, and Messrs. Carpenter, Day & Carpenter, for Appellant.

Mr. C. H. Foot, and Mr. W. H. Poorman, for Respondent.

MR. JUSTICE SMITH delivered the opinion of the court.

This is an appeal from an order of the district court of Flathead county setting aside a default judgment and permitting the defendant to answer. The plaintiff, who was sister to the deceased, Jacob Fine, filed a claim against his estate in the sum of $500, for work, labor and services performed by her during the years 1901 to 1906. The administrator rejected the claim, and this action resulted.

Summons was personally served on May 29, 1908, default entered on June 19, and judgment entered June 20, 1908. On

June 24 motion and notice of motion to vacate the judgment were served and filed, accompanied by the affidavits of the defendant and C. H. Foot, Esq., his attorney. The affidavit of Mr. Peeler contains the following allegations: "That through mistake, inadvertence, and neglect of himself and his counsel, C. H. Foot, he was prevented from appearing and answering in said action, as shown by the affidavit of his counsel hereto attached, and the following statement: That on the second day of June, 1908, he delivered to said counsel the summons and complaint in said action served upon him; that he does not remember whether at that time he told his counsel when the summons and complaint were served upon him, but believes he did; that he briefly discussed the case with his counsel, and then left him, instructing said counsel to look after the case. and see that the answer was properly filed, and his said counsel assured him that he would do so. This affiant had just returned the morning before from a three weeks' absence from the city of Kalispell, his home, and found a great deal of business accumulated during his said absence, and that for several days succeeding the delivery of said papers to his counsel, he was exceedingly busy with his duties as president of the First National Bank of Kalispell, and had no time to give thought to said action, and, relying upon the promises of his said counsel, did not attempt to charge his mind therewith." This averment is followed by an affidavit of merits.

In Mr. Foot's affidavit is found the following: "That on the second day of June, 1908, said D. R. Peeler called upon affiant in his office, in the city of Kalispell, and delivered to him a copy of the complaint and summons in the above-entitled action; that said defendant inquired of affiant what he had to do with the papers served upon him, and affiant replied that he would have to answer and defend in said action. The merits of the case were but briefly discussed between affiant and defendant at that time, as both had been aware for some time that such an action was to be commenced, and the merits of the case had been thoroughly discussed on previous occasions, and all the facts known to said defendant were known to affiant at

that time, as he verily believes. In just what manner the information was conveyed affiant is unable to state, but at that time, to-wit, June 2, 1908, affiant understood and believed from the conversation he had with said defendant that said summons had been served upon defendant that day, and that, immediately after the defendant left his office, he entered upon his desk calendar the date when time for answering would expire, to-wit, June 22, 1908; that affiant at no time forgot that the day for answering, as he understood it, was on the twentysecond day of June, 1908, and he at all times fully intended to prepare his answer to said complaint, and have the same filed within the twenty days from the date of the service of the summons, and would have done so but for the misunderstanding between himself and said defendant; that just about the time said action was commenced affiant conversed with plaintiff's attorney, Charles W. Pomeroy, Esq., concerning the same, and their conversation was to the effect that the said case could not be reached for trial until late in the fall of the year 1908, as both parties to the action would have to take depositions of witnesses, all of whom, as to the facts and merits of the case, reside in England, as affiant is informed and believes. For this reason, and as no trial jury was expected till November, 1908, he made no haste to get the case at issue, therefore delayed preparing the answer until the 20th of June. In preparing to serve his answer he discovered for the first time that default had been entered in said action against said defendant. He immediately interviewed plaintiff's attorney, and informed him of his intentions to move to vacate the default, and asked plaintiff's attorney to consent to its being vacated, and to not enter the judgment on the default. This plaintiff's counsel at that time declined to do, and affiant then began the preparation of the papers necessary to vacate said default.

An answer was tendered, admitting the death of Jacob Fine, the appointment and qualification of the defendant as administrator of his estate, and the publication of notice to creditors to present their claims within four months. As to the allegations that plaintiff performed work and services for deceased in his