or, in the absence of this notice, that a special order of the court be obtained setting it for trial. Appellant's attorney was bound by the rule, as were all others, and, as we have seen, he recognized it at the first term the case was at issue. The mere fact that he contends that the rule did not provide for notice preceding each term in no way affects the legal rights of respondents in view of the holding that such was it, legal effect. But, by recognizing the rule at the first term when the case became at issue, it is only fair to counsel to assume that he, impliedly at least, consented that the case be dropped from the original trial calendar as made up by the clerk, as provided in section 3131. After he thus consented, the case remained dropped until restored to the calendar upon notice, as that section provides. Neither this nor any other notice was ever given or served, as the court affirmatively finds. The case being thus dropped, and not restored as provided by section 3131, the provisions of section 3132 with respect to bringing on the case for trial at any time by one party in the absence of the other must necessarily, in the interest of justice and equality, be construed to refer to cases that are regularly on the trial calendar for trial, or placed there by the order of the court; otherwise a court of justice would become a mere trap to catch the unwary with what are usually denominated "snap judgments." To observe the rule by a party at the beginning of a term of court, and then permit it to be suddenly disregarded and allow a case to be tried under section 3132 without any notice, would, to say the least, in many cases work serious injustice. We think, therefore, that the court had proper authority to promulgate rule 21, and that litigants in court and their attorneys were bound to observe its provisions. That section 3132 is not to be construed as appellant's counsel contend is, we think, well illustrated by the case of Ryan v. Mooney, 49 Cal. 33. That section is a copy of section 594 of the California Code of Civil Procedure, and in the case above referred to it appears that the case was not on the printed trial calendar used by the court in hearing cases, but that the attorney for plaintiff had the case placed on the trial calendar by a motion to the

court, and then obtained judgment in the absence of the opposing attorney, who was absent because he relied on the fact that the case was not on the trial calendar or list of cases to be tried, not appearing on the printed calendar used by the clerk. The Supreme Court of California sustained the order of the lower court setting aside the judgment thus obtained without imposing costs on the opposite party. If, therefore, counsel are right that a case, under section 3132, may be tried at any time and under all circumstances as a matter of right, then the California court is wrong. By this we do not mean that a judgment entered contrary to the rule would be vulnerable to attack for that reason alone, but what we mean is that where, in a case like the one at bar, it is alleged and found that one party relied on the rule and the other party obtained an undue advantage by disregarding it, and thus the other party is misled, that a court of equity in a proper case may compel the party obtaining the advantage to surrender it and place the parties in statu quo and upon an equality, providing the party seeking the relief is free from culpable negligence. It has been held that where a notice of trial is required either by statute or rule of court, if a judgment be obtained in the absence of such notice and in the absence of the other party, the judg ment, though not void, is irregular, and should be set aside. (People v. Bacon, 18 Mich. 247.) True, no notice of trial was required in this case, but notice that the case would be set for trial was required by rule 21, and, as this was not given, in view of the facts found by the court, we think it was a matter within the sound discretion of the trial court to grant the relief in this case. All the authorities are to the effect that, whether the judgment be attacked by motion or by a proceeding in equity, the matter rests within the sound discretion of the trial court. The authorities further hold that in such proceedings the courts will incline strongly toward bringing about a trial on the merits, and, where the trial court has granted a trial, the appellate courts will not interfere, unless it appears beyond all reasonable doubt that the trial court has abused the discretion vested in it. (1

Black on Judgments, section 354. Woolff v. Canadian Pac. Ry. Co., 89 Cal. 332, 26 Pac. 825; Cameron v. Carroll, 67 Cal. 500, 8 Pac. 45; Watson v. S. F. & H. B. Ry. Co., 41 Cal. 17.) In 2 Elliott's General Practice, the rule is stated in the following language:

"The appellate courts are much more reluctant to interfere where a default is set aside than in cases where the application is denied, as is evidenced by many decisions. The rule is analogous to that which prevails where new trials are granted, for, as is well known, appellate courts very seldom interfere with an order granting a new trial."

Appellant's counsel attack the findings of the court, and assert that a part of them at least are not sustained by the evidence. It could subserve no good purpose for us to set forth in detail our reasons for holding that all the essential facts found are supported by the evidence. It must suffice to say that, upon an examination of the entire record, we have found no difficulty in arriving at that conclusion.

Counsel also insist that the findings and evidence are not sufficient to warrant the relief granted by the court in an action in equity. With regard to this, we think that if a motion to vacate the judgment had been made immediately after the judgment was entered, and the evidence in this record had been made to appear in support of such motion, no one would seriously contend that the court abused its discretion in setting aside the judgment and permitting the respondents to defend the action on the merits, and we feel constrained to say that in such event no appellate court would have interfered with the judgment of the trial court in granting the relief. In view of the facts found by the court and supported by the evidence, that neither the respondents nor their at torney knew or had any intimation of the fact that judg ment was obtained against them in their absence until after the statutory time had expired in which to attack the judgment by motion, and that neither of them was chargeable with negligence, we think the rule in granting relief both on motion and in an action should be the same. If it would have been just and equitable to grant the relief on motion, we think it is equally so in the absence of equities in favor

of appellant in this proceeding. Quite true, the evidence is not as strong in this case as it is in many cases found in the books, but a large discretion is vested in the trial court with respect to the effect to be given to the evidence in each particular case. It is quite possible that, if the court had found against respondents under the facts in this case, we should likewise be in favor of supporting the findings of the court.

With regard to the numerous authorities cited by appellant's counsel, we remark here that it would subserve no useful purpose to discuss them or to cite those cited or other numerous authorities that might be cited. For every case that can be found where courts have refused relief another may be found where it was granted upon a similar state of facts. Each case, as is well said in 1 Black on Judgments, section 354, must be determined upon its own facts and cir· cumstances. In those matters courts must be guided by the fundamental principles of justice and equity, and cases can do no more than to illustrate and apply them. While it may be conceded that there are some cases that attempt to lay down. rules to govern courts in granting or withholding relief in this class of cases, they all arrive at the same conclusions, which are that such matters must to a very large extent be left to the sound discretion of the trial court, and that this discretion will not be interfered with except in very clear cases of abuse, and that this doctrine applies most strongly to cases where, like in the case at bar, the court has exercised it in favor of requiring both parties to submit to a trial upon the merits. Trial courts would but partially discharge the important duties devolving upon them with respect to their discretionary powers if, they should fail in affording litigants every reasonable opportunity to be heard on the merits of their cases in case there is no culpable negligence upon their part. Appellate courts would be equally recreant to the trust reposed in them if they attempted at long range to reverse all cases for some technical error. Appellate courts should be quick to correct errors which deprive a party of an impartial hearing, or where substantial rights 32 Utah-23

have been invaded, or disregarded, but should be slow to interfere in discretionary matters, and especially so where the greatest injury that can be inflicted on the adverse party is to require him to submit to a trial on the merits.

We are satisfied, after due consideration and reflection, that the action of the trial court in this case does not fall within that class of cases where appellate courts have held that the granting of a trial on the merits amounts to an abuse of discretion.

The judgment therefore is affirmed, with costs.

MCCARTY, C. J., and ARMSTRONG, District Judge,

concur.

CUTLER v. HAYCOCK.

No. 1805. Decided June 11, 1907 (90 Pac. 897).

1. JUDGMENT BY DEFAULT-SETTING ASIDE DEFAULT-DETERMINATION-AFFIDAVITS OF MERITS. A court cannot consider matters going to the merits of the case presented in the affidavits in support of a motion to vacate a judgment by default, and set aside the default, since these must be tried in the regular way.

2. SAME DEFAULT IN PLEADING. Revised Statutes 1898, section 2999, provides that all pleadings subsequent to the complaint must be filed with the clerk, and copies thereof served upon the adverse party or his attorney. Section 3331 provides that service of papers may be made on the attorney, or, if he is absent from his office and residence, by leaving the same at his residence with some person of suitable age and discretion. Section 3332 provides that, in certain cases, service may be made by mail, and section 3333 makes the service complete at the time of the deposit in the post office. Section 3179, subdivision 2, permits a default to be entered upon application to the court where no motion, demurrer, or answer has been filed with the clerk of the court within the time specified in the summons. Held, that the service of a demurrer on plaintiff's attorney by leaving it with his wife at his residence, he being absent from his office and residence, attending court in another county on the last day on which a pleading in the action could be filed, was not equivalent to filing the same with the clerk, and hence, where the demurrer was not mailed so as to reach the place where it was to be filed