when I got home that night. My two little girls and Mr. Murphy were at home when I got there." And again, referring to her arrest and prosecution, she said: "I suffered untold misery and humiliation on account of it. . . I was very much grieved and distressed over it. I couldn't do very much work, or sleep but very little."

On February 6, 1906, Mrs. Murphy had a preliminary hearing before the justice of the peace on the charge for which she was arrested. At the conclusion of the evidence for the state the case was dismissed, and Mrs. Murphy discharged. The record also shows that Booth employed counsel to assist in the prosecution of Mrs. Murphy. Booth was called as a witness for the state at the preliminary hearing, and testified that he would like to see Mrs. Murphy convicted of the crime for which she was being prosecuted.

The court among other things, charged the jury as follows:

"If you find from the evidence that the defendant caused plaintiff to be arrested for the purpose of assisting defendant in collecting a claim for moneys which defendant thought he had against plaintiff, or to compel the delivery of property, or to satisfy some grudge or hatred, or to accomplish some other ulterior or wrongful purpose, then it was begun maliciously, as though inspired by revenge."

Appellant contends that this instruction is susceptible of two constructions, one of which is supported by the facts, and the other, he insists, is not supported by any fact in the case, and that therefore the giving of the instruction was prejudicial error. In his printed brief he says:

"The jury might, under a strained construction, say that the part of the instruction referred to had reference to the payment of the money which the defendant claimed was due the corporation, but which, as a matter of fact, the instruction does not say, if properly construed, or, they might have construed the instruction as it is really worded, and say that perhaps the defendant himself made some claim that Julia Murphy was owing him money, and therefore concluded that the prosecution was commenced to assist in the collection of that money."

The evidence, without conflict, shows that Booth, appellant, was the person with whom respondent, Mrs. Murphy, transacted practically all the business connected with the leasing of the hotel and the purchase of the furniture therein, and he was the sole and only person with whom she transacted the business in relation to the giving of the note and mortgage in question. Booth, in his testimony, says: "During the times of these negotiations with Mrs. Murphy, I was secretary and manager of the business; also, a stockholder. I was interested in the collection of this thousand dollars as a stockholder of the company. I had full charge of the proceedings that have been taken with reference to the collection of this money." It is not claimed nor does the record show, that any "claim for moneys" was involved in any of the transactions or proceedings out of which this action arose other than the one thousand dollars for which the note and mortgages were given. There fore we do not think the jury could have understood the instruction to refer to some claim not mentioned or referred to in the record, and which, as a matter of fact, the record shows did not exist.

Appellant contends that "there is no evidence in this case which would justify the jury in awarding exemplary damages against defendant, and that the court erred in instructing the jury upon the question of exemplary damages." And in discussing this assignment of error counsel for appellant, in their brief, say: "Exemplary, punitive, or vindictive damages are such damages as are in excess of the actual loss, and are allowed where a tort 2, 3 is aggravated by evil motive, actual malice, deliberate violence, oppression or fraud. The law bearing on this phase of the case is so well understood that it is needless to cite authorities"-citing Words and Phrases, vol. 3, p. 2577. We think the facts in the case, tested by this rule, which we concede to be correct, fully warranted the jury in awarding exemplary damages, and the court did not err in submitting this question to them.

The court very carefully and fully instructed the jury upon the questions of law applicable to the facts in this case, and the instructions, when read and considered together, are as favorable to the defendant as the facts in the case warrant.

Judgment is affirmed, with costs to respondent.
STRAUP, C. J., and FRICK, J., concur.

McWHIRTER v. DONALDSON et al.

No. 1984. Decided August 23, 1909 (104 Utah 731).

1. APPEAL AND ERROR-DISCRETION OF TRIAL COURT-VACATING— DEFAULT JUDGMENT. The general rule is that a motion to vacate a default judgment on the ground of excusable neglect and permit the party against whom it is entered to plead to the merits is addressed to the discretion of the court, and, unless it appears that the discretion has been abused, the court's ruling in vacating or refusing to vacate the judgment will not be disturbed on appeal.1 (Page 300.)

- VACATION

EXCUSABLE NEG

2. JUDGMENT — DEFAULT JUDGMENT LECT DISCRETION OF COURT. To bring a case within Comp. Laws 1907, section 3005, providing that the court may in its discretion upon just terms allow an answer to be filed after the statutory time, defendant must show due diligence to prepare and present his defense, that he was either prevented from doing so by some accident, misfortune, or circumstance over which he had no control, or that he was misled, or lulled into inaction, by the opposite party or his counsel, and, where on the day when plaintiff's attorney filed notice of his withdrawal from the case, defendant's attorney was informed by plaintiff that he proposed to push the case, and was informed by plaintiff's new attorney on the same day that the attorney would not obligate himself to continue in force a stipulation that defendants had entered into with plaintiff's former attorney extending the time for filing an answer, and that a default judgment was entered three weeks thereafter, defendant was not entitled to relief under the section.2 (Page 302.)

1 Cutler v. Haycock, 32 Utah 354, 90 Pac. 897; Aaron v. Holmes. 99 Pac. 450; Quealy v. Willardson, 35 Utah 414, 100 Pac. 930. 2 Peterson v. Crosier, 29 Utah 235, 81 Pac. 860.

3. STIPULATIONS-NECESSITY FOR FILING OR ENTERING ON MINUTES. Under Comp. Laws 1907, section 115, subd. 2, providing that an attorney shall have authority to bind his client by his agreement filed with the clerk or entered upon the minutes of the court and not otherwise, an oral stipulation to extend time for filing an answer which was neither filed with the clerk, nor otherwise made a matter of record, is of no legal effect. (Page 302.)

4. ATTORNEY AND CLIENT-POWER OF ATTORNEY TO BECOME SURETY. Under Comp. Laws 1907, section 133, providing that no practicing attorney shall become surety in a suit in which he is engaged as attorney, attorneys at law cannot act in the dual capacity of surety and attorney in the same action. (Page 304.)

5. ATTORNEY AND CLIENT-OFFICE OF ATTORNEY-NATURE.

Attorneys

at law are officers of the court, and it is their sworn duty to aid the court in seeing that actions in which they are engaged as counsel are conducted in a dignified and orderly manner, free from passion and personal animosities, and that all causes brought to an issue are decided on their merits only, and they must devote their ability, skill, and diligence along ethical and professional lines to the interests of their clients, and refrain from entering into any alliance or incurring any obligation connected with the litigation in which they are engaged as counsel that would place them in a position where their personal interests would be adverse to those of their clients. (Page 304.)

6. JUDGMENT VACATING DEFAULT JUDGMENT INTERPOSITION OF UNCONSCIONABLE DEFENSE. A default judgment will not be set aside to enable a party to interpose an unconscionable defense, and hence a default judgment for a sum lost by plaintiff at gambling will not be vacated to allow defendant to defend on the ground that he won the money according to the rules of the game played, which was in violation of the penal statutes; equity in such case leaving the complaining party where it finds him. (Page 306.)

STRAUP, C. J., Dissenting

APPEAL from District Court, Third District; Hon. M. L. Ritchie, Judge.

Action by William McWhirter against James Donaldson and others.

Judgment for plaintiff. Defendant appeals.

AFFIRMED.

Thurman, Wedgwood & Irvine for appellant.

James Ingebretsen for respondent.

MCCARTY, J.

This action was begun in the district court of Salt Lake County to recover for money had and received. The complaint was filed October 18, 1906, and on November 19, 1906, summons was served on defendant James Donaldson. The other defendants were not served with process, nor did they appear in the action. On October 2, 1907, nearly a year after the service of summons, judgment by default was rendered in favor of plaintiff and against defendant Donaldson for the sum of $1353.33. On October 12, 1907, Donaldson moved the court to set aside the default and vacate the judgment, and permit him to file an answer which he presented in connection with his motion. He filed several affidavits, and introduced oral testimony in support of the mo tion. Counter affidavits were filed by plaintiff. The court overruled the motion, and Donaldson appealed.

The facts leading up to and surrounding the entry of default and the rendering of judgment thereon, and the grounds upon which Donaldson relied to have the judgment vacated and the case reopened, as shown by the files in the case and the affidavits presented and the testimony introduced at the hearing on the motion, are as follows: On or about September 19, 1906, plaintiff, in company with his brother, Alexander McWhirter, visited a certain rooming house in Salt Lake City, Utah, and engaged in a game of cards called "stud poker" with the defendant Donaldson. The money sued for in this action was bet and lost by plaintiff and won by Donaldson. The McWhirters employed M. P. Braffet, an attorney at law, to commence the action, and take whatever steps he might deem necessary to recover the money bet and lost on the game of cards referred Before the complaint was filed, it was discovered that

to.