¶1(dissenting). It is perhaps elementary in legal practice that a defendant seeking to defend after default judgment must excuse his default, and must also present to the trial court a good defense on the merits. It is equally well settled that facts constituting such defense cannot be controverted or tried out on an application for leave to defend, and that only facts alleged to excuse the default can be .controverted.
¶2.It is not questioned upon this appeal that the defense proposed was competent and material as affecting the amount of the judgment for alimony. It is- conceded that the trial court, upon the evidence then before it, awarded to plaintiff an amount equal to what appeared to be one-half of defendant’s property. It is also conceded — defendant’s affidavits being accepted as true — that the judgment, if allowed to stand, would give plaintiff two-thirds of defendant’s entire property. The issue of' fact presented involved the real value of defendant’s property. That this issue of fact was material to the judgment and should be submitted to the trial court I think is apparent. The majority opinion holds that the trial court abused its discretion in allowing this issue to be tried, for the reason, apparently, that this court is of opinion that the trial court' might, on a new trial, allow plaintiff a less amount than was allowed on the first trial. The serious objection to this is that it assumes original jurisdiction in this court over an issue which belongs in, but has never been determined by, the trial court, and even holds that the trial court abused its discretion when it manifested a willingness to hear and’ determine such issue upon a new trial. I do not think a trial court should be reversed on the ground that it might enter a judgment which this court would not approve. Such procedure is not the exercise of appellate jurisdiction, but in effect is an assumption of original jurisdiction which belongs to the trial court.
¶3Had the majority opinion proceeded upon the view that defendant had failed to excuse his default, I should be loath to-dissent from the views of my majority Associates. But as no authorities are cited — and indeed I think none can be found— sustaining the reasoning upon which the majority opinion pro*562ceeds, I venture respectfully to dissent from both the reasoning' and conclusion.
¶4(concurring in the dissent). I was at first of the impression that we might take the short cut, and by vacating the order granting new trial sustain the allowance made by the judgment, because in my opinion the allowance was not excessive under the facts. To do so, however, is to charge the trial court with an abuse of discretion in granting the new trial. I do not think the facts warrant us in saying that the trial court did abuse his discretion. I therefore concur in the dissent.