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99 Or. 410

Schiffman v. Robison

Oregon Supreme Court

Decided February 23, 1921

Oregon Supreme Court · decided 1921-02-23

From Tillamook: George R. Bagley, Judge. Department 1. The plaintiff; began a snit against th'e Comstock Manufacturing Company and Robison, asking, among other things, to have canceled an assignment of a contract which he alleged had been made over to the Tillamook County Bank and defendant Robison as collateral security for indebtedness owing by plaintiff to said assignees, which indebtedness had been fully discharged. Personal service was made upon Robison August 23, 1919.

Cited by 2 later decisions — most recently June 1923

2 state decisions

Relies on Lovejoy v. Willamette Locks Co. · Horn v. United Securities Co.

Good law ✅— No negative treatment on recordhow we know

Affirmed · Decided 1921-02-23

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McBRIDE, J.

¶11. The granting or refusing a motion to set aside a default is a matter resting in the sound discretion of the court and should not be disturbed, unless that discretion has been abused: Lovejoy v. Willamette Locks Co., 24 Or. 569 (34 Pac. 660); Horn v. United Securities Co., 47 Or. 35 (81 Pac. 1009).

¶22. There was no such abuse of discretion here. The affidavit of defendant was contradicted by the return of the sheriff, as to the county in which defendant was *414served, and was contradicted by the affidavits of Mr. and Mrs. McGrath in other material particulars. The defendant’s letter to McGrath indicated a disposition to delay and harass plaintiff, rather than an intention to make a bona fide defense. In fact, nearly two weeks elapsed before a motion was made for a default. The defendant failed to furnish the filing fee required, which the affidavits of Mr. and Mrs. McGrath show he was informed must be advanced by him. He was not diligent, and must abide the consequences.

¶3The decree of the Circuit Court is affirmed.

¶4Affirmed.

Burnett, C. J., and Benson and Harris, JJ., concur.
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