dissent">Otis, Justice

(dissenting).

The majority decision affirms an order of the district court vacating an order dated January 20, 1960, for the assigned reason that appellants have failed to comply with the conditions thereof.

The precise terms of the original order are as follows:

“In the within entitled matter it appears that judgment was entered by the Clerk herein, as a default and without proof before the Court, in favor of plaintiff and against Lawrence J. Benson and Earl Benson, defendants, on December 18, 1958, in the amount of $798.35. That on February 6, 1959 the Court issued its Order to show cause and restrained plaintiff from taking any action under said ex parte judgment. That said Defendants have paid to Clifton Parks, attorney for Plaintiff the sum of $50.00 as costs, upon the vacating of said judgment, and further have deposited in escrow the sum of $750.00, as bond or guarantee toward the payment of any sums plaintiff may recover, if any, against said defendants, or either of them.

“It Is Ordered, that the judgment entered herein ex parte as a default on December 18, 1958 in amount of $798.35 against said defendants is vacated and set aside, and the Clerk is authorized and directed to vacate and expunge the same, forthwith. That the sum of $750.00 so deposited in escrow shall stand, pending the trial of this action, and be applied toward such judgment, if any, plaintiff may recover against defendants herein; and that any amount remaining over shall be returned forthwith to Defendant Earl Benson.

“That Defendants shall have eleven (11) days from date hereof to interpose, serve and file their answer or answers, setoffs, counterclaim or other pleadings herein, or may permit their proposed answer as filed herein to stand. That a note of issue may be filed forthwith, and the case advanced on .the calendar to be heard February 8, 1960, or as soon thereafter as it may be reached on the court calendar. Plaintiff is hereby allowed attorneys fees of $25.00 for bringing on the motion of January 20, 1960.

“/s/ Ronald E. Hachey Judge of District Court.”'

(Italics supplied.)

*382A motion of respondent made on October 6, 1960, and returnable October 21, 1960, before a different judge, prayed in the alternative for an order reinstating the default judgment which was vacated January 20, 1960, or requiring appellants to proceed to trial on their original proposed answer. In his affidavit in support of that motion, respondent’s counsel stated the following as his only ground for securing the relief he there sought:

“That the defendants, having failed to interpose their answer or counterclaim within the eleven days allowed by order of the Court dated January 20, 1960, are in default and have failed to comply with the court’s order.”

and

“* * * defendants have failed to comply with the order of the Court and have not elected to stand upon their answer attached to their moving papers in February, 1959.” (Italics supplied.)

Counsel made no allusion in the trial court to appellants’ failure to pay the additional $25 attorney’s fees included in the January 20, 1960, order, nor did he attribute to appellants any responsibility whatever for the fact the case was not heard on the merits at or about the time specified in Judge Hachey’s order. Nor does the order from which respondent here appeals make any reference to the $25 attorney’s fees or suggest that any blame attaches to appellants for the court’s failure to hear the case at the time originally ordered. There is nothing in the order of January 20, 1960, which makes the payment of additional attorney’s fees a condition precedent to vacating the original default judgment. Indeed, the order of October 28, 1960, recites no condition of Judge Hachey’s order which had not been fully discharged by the time of the hearing on October 21, 1960, save only the provision requiring either that respondents serve and file their answer or counterclaim within 11 days of January 20, 1960, or “Permit their proposed answer as filed herein to stand.” (Italics supplied.)

The trial court apparently adopted the position of respondent that appellants were required to make a formal election. However, the terms of the order of January 20 simply do not contain such a con*383dition but merely provide that if a new answer or counterclaim is not interposed within 11 days, the respondents may permit their proposed answer as filed to stand.

There is absolutely nothing in the record to support the suggestion of the majority that the payment of the $25 attorney’s fees was a prerequisite to vacating the default judgment or that appellants were responsible for the court’s failure to hear the case on or about February 8, 1960. I would reverse and remand the matter for trial on the proposed answer originally interposed.

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