The opinion
ON MOTION TO DISMISS APPEAL ( 13 P.2d 372 )
Respondent moves to dismiss the appeal for the reason that it appears from the bill of exceptions that the testimony of a witness for plaintiff was given at the hearing on the motion to vacate the judgment and is not contained in the bill of exceptions.
On April 8, 1931, plaintiff commenced an action against the defendant claiming damages for personal injuries in the sum of $15,000. On April 22, 1931, an order of default against defendant was entered, and on the 8th of May default judgment was rendered against defendant in the sum of $10,000 and $35 costs. On September 2, 1931, the defendant filed a motion to set aside the order of default and to vacate the judgment and permit defendant to answer under the provisions of section 1-907, Oregon Code 1930. The defendant tendered an answer. Affidavits in support of the motion were filed pursuant to section 9-1301, and affidavits in opposition thereto and affidavits by defendant in reply to plaintiff's affidavits, some twenty-five in all. In addition thereto the oral testimony of one James L. Hope, as a witness for plaintiff, which testimony is not contained in the bill of *Page 173
exceptions, was given on the hearing of the motion to vacate the judgment, notes of which were not taken by the reporter and a record was not preserved.
The motion to dismiss the appeal apparently involves the same question as the trial upon the merits of the case. We will not consider the case on its merits or refer thereto.
It may be, however, that the testimony which was not contained in the bill of exceptions would be simply cumulative, and it may be shown, by the several affidavits or it may appear from plaintiff's own affidavits, whether the default judgment should be vacated and the defendant allowed to file an answer, or, in other words, whether the circuit court properly exercised its discretion in the matter. Therefore, the motion to dismiss should not be allowed for this reason.
It is also suggested by the motion that the appeal is not from the default judgment but from the order denying defendant's motion to set the judgment aside. Section 1-907 provides, among other things, that the court may, "in its discretion, and upon such terms as may be just, at any time within one year after notice thereof, relieve a party from a judgment, order, or other proceeding taken against him through his mistake, inadvertence, surprise, or excusable neglect." The defendant did not have the right to appeal from the default judgment: § 7-502, Oregon Code 1930. We think defendant has the right to appeal from the order of the court refusing to vacate the default judgment under the provisions of sections 7-501 and 7-502, Oregon Code 1930: McCoy v. Huntley , 53 Or. 229 ( 99 P. 932 ).
The motion to dismiss the appeal is therefore denied. *Page 174