LUKEY v. THOMAS

McNAMEE, Justice.

Appellant filed suit upon a promissory note. Summons and complaint were personally served upon the defendant October 28, 1957. When no appearance had been made by either defendant, plaintiff caused their default to be entered on December 12, 1957 and on that day he had judgment entered for the amount of his claim. This was twenty-three days after default could have been taken.

On April 22, 1958 defendants moved to set aside the default and to vacate the judgment, for the reason of the "inadvertence, surprise and excusable neglect of the defendants." The motion was granted and this is an appeal from the order granting such relief.

This court has repeatedly held that a motion to set aside a default and vacate the judgment resulting therefrom is addressed largely to the sound discretion of the court and will not be disturbed on review, unless there has been abuse of such discretion. This discretion is a legal discretion, however, and cannot be sustained where there is no competent evidence to justify the court's action. Haley v. Eureka Co. Bank, 20 Nev. 410, 22 P.2d 1098.

Defendant's written motion and notice thereof stated that it would be based on the affidavit of Leonard T. Howard, attorney for defendants, filed therewith and upon Rules 55 and 60, NRCP.1

Although Rule XI of Rules of the District Court specifies the manner of making motions,2 the court minutes reveal only the following:

While the minutes do not specifically state that the order was based on any evidence, we assume from the court's written order signed and filed the day subsequent to the hearing, that it was based on the three affidavits on file.3

These three affidavits consisted of (1) the affidavit of defendants' counsel mentioned in the written motion, (2) said counsel's amended affidavit filed subsequent to the filing of the motion, and (3) the counter-affidavit of plaintiff's counsel, Donnell Richards, in opposition to said motion. They constitute the only evidence upon which the lower court could exercise its discretion in determining whether the defendants had a good defense and were not guilty of inexcusable delay.

We are not concerned with the third affidavit, as it is in effect a mere denial of the other two.

The first affidavit states:

The foregoing part of said affidavit has no probative value of asserting any defense to the action. With respect to showing a justifiable delay, the pertinent averments show just the opposite. True, a stipulation to extend time is alleged, but if in fact there were such a stipulation, defendants would be relying on a verbal stipulation and one so vague as to the duration of the extended period that it amounts to no evidence at all. Haley v. Eureka Co. Bank, supra; Stretch v. Montezuma M. Co., 29 Nev. 163, 86 Pac. 445.

The concluding portion of this affidavit states merely legal conclusions and this has no evidentiary value.4

Defendants said amended affidavit alleges that affiant, defendants' counsel:

This is some evidence and the only evidence relevant to defendants' contention that their delay was excusable.

Whether such evidence in itself is sufficient, in the absence of any showing of a proposed defense, to justify the lower court's action, is the sole question on appeal.

If we assume without so holding, that this evidence was sufficient to warrant a finding of excusable delay, nevertheless in the absence of any showing by competent evidence of what the defense would be in the event defendants were permitted to answer, the court was not justified in assuming merely from the arguments of counsel that any defense in fact existed, and furthermore it would, under such circumstances, be depriving itself of its function to pass on the merits of any defense as could have been properly presented.

In view of the extended delay (default taken 23 days after time to answer had expired, and the motion of defendants for relief having been filed 131 days after the default was entered), the evidence presented herein which was limited to an attempted justification of the delay, without any showing of the nature of the defense, if any, was insufficient to justify the lower court's action in granting defendants' motion.

The order of the district court is reversed.

MERRILL, C.J., and BADT, J., concur.