This is an appeal from an order vacating and setting aside a judgment obtained by default. The action is one in replevin, commenced by the appellant against the respondents, Lavin and others, to recover the possession of certain personal property, consisting of a lot of undertaking goods, alleged to be of the value of $947.50. To the complaint the defendants interposed a demurrer, which appears to have been confessed by the plaintiff, and he thereafter filed an amended complaint, and served the same by mail on one of the attorneys for the defendants. It appears from the record that the attorneys who filed the demurrer to the complaint were nonresidents and, as required by the laws of this state, signed the name of the resident attorney to said demurrer, whom they neglected to notify of that fact. Under our law it is the proper practice to serve papers in an action on the resident attorney, and the service of the amended complaint on the resident attorney was a sufficient service. When the amended complaint was served on such resident attorney, he had no information in regard to said action, and wrote a letter to the attorney for appellant, requesting him to advise the writer in regard to the ease, as he was not familiar with it. Counsel for appellant did not answer said letter, and thereafter had a default entered, and after said default was entered, said resident counsel met appellant’s attorney on the street, and some conversation occurred between them in regard to the matter, and it appears that the im*366pression was left on the mind of the resident attorney for the defendants that a mistake had been made in sending a copy of said amended complaint to him. The next day thereafter a default judgment was entered against the defendants, requiring them to deliver said personal property to the appellant, or to pay him the value thereof. Some time thereafter a motion was made to set aside said default judgment and to permit the defendants to answer. Several affidavits were filed, pro and con, in support of and against said motion, and the court, after hearing said matter, sustained the motion and set aside the judgment. The appeal is from that action of the court, and the only error assigned is that the court erred in granting said motion.
In order to fully understand this case it will be necessary to consider the manner in which said personal property came into the hands of the defendants in this action. They do not claim to be the owners of the property. They only claim that they have a lien on the same for keepers’ fees, or for the rent of the building in which the sheriff had theretofore stored said personal property. The facts leading up to the sheriff’s taking possession of said property are substantially as follows: It appears that a proceeding had been commenced for the foreclosure of an alleged chattel mortgage, given by the appellant Beck on said personal property; that the sheriff took possession thereof, and stored the same in a building belonging to the Lavins, or a building over which they had control. Thereafter Beck brought suit to restrain the foreclosure of said mortgage, and before said action was tried, a stipulation or agreement in settlement of said, matter was entered into, under and by which it was expressly stipulated that the plaintiff, Beck, should have the personal property covered by said chattel mortgage, free and clear of any and all claims on the part of the defendants, or either of them, and that the said Beck should pay the costs and expenses of the sheriff for keeping and caring for said personal property, if any, since the same had been in his hands. In the action in which said stipulation was made the sheriff was made a party, and, as we view it, regardless of other ques*367tions that have been discussed by counsel, the ease turns upon the question as to whether the defendants in this action have a lien upon said personal property for the rental of the building or place where said goods were stored or kept, and for their care and custody. They claim that, as the sheriff left said property with them to be kept by them, they have a right to hold the same until their charges are paid. It appears-from the affidavits, filed in support of the motion to set aside the default, that the sheriff himself claims no interest whatever in said property, or claims no fees or charges due him thereon. That being true, have the defendants under those facts any lien on said chattels? We think not. If they were keepers for the sheriff, they must look to the sheriff for their pay, and cannot have a lien on the property left with them by the sheriff. The sheriff had a right to retain possession of said property until his fees and cost of taking and holding the same had been paid, but the keeper or custodian did not have that right after the sheriff had released said property from his custody. It appears from the affidavit of appellant that the sheriff who succeeded the one who had taken said property released and surrendered the same to appellant, and informed appellant that he had no claim against it, and that appellant could go and get it. Those statements in the affidavit are not denied, and must be taken as true. Under those facts, respondents had no authority to detain said property, but must look to the sheriff for their costs as custodian or keeper, if any they have coming to them. Therefore, as the defense set up in the affidavit of the principal respondent, in support of the motion to set aside said judgment, is no defense to this action, the court erred in granting said motion; as in cases of this kind the defaulting party, under the provisions of sec. 4229, Rev. Stat. 1887, must not only show that the default occurred through mistake, inadvertence, surprise or excusable neglect, but must also show that he has a meritorious defense to the action. (Holzeman & Co. v. Henneberry, 11 Ida. 428, 83 Pac. 497.)
Counsel for respondent, in support of his contention, cite sec. 3445, Rev. Stat. 1887, as amended by Laws 1893, p. 67, *368which provides that every person who, while lawfully in the possession of an article of personal property, renders any service to the owner thereof, by labor or skill in protecting or keeping the same has a special lien thereon, etc. The provisions of that section do not apply to this case, as this property was in the custody of the law; and, whenever the sheriff, in whose hands it was, desired to release the same, he had that authority, and the custodian or keeper under him had no authority to hold it after its release. The same may be said of the decisions cited by respondent on this question, as they have no application to keepers of property appointed by the sheriff; for in such cases the custody of the keeper is the custody of the sheriff, and he must look to the sheriff for his compensation. Counsel also cite Barrie v. Northern Assur. Co., 99 Minn. 272, 109 N. W. 248, which case involves the opening of a default judgment. Counsel for respondent contend that this case holds that where there is a showing not manifestly insufficient, the court should be liberal in the exercise of its discretion in the furtherance of justice in setting aside a default. In that case it was held that the answer disclosed a good defense. That case is not applicable here, for the reason that the showing to set aside the default in the case at bar is manifestly insufficient, for the reason that it fails to show a meritorious defense.
The order setting aside the judgment must therefore be reversed and the case remanded, with instructions to overrule said motion. Costs are awarded to the appellant.
Ailshie, C. J., and Stewart, J., concur. Default — Set Aside — Affidavit Excusing Default — Counter-affidavits — Defense Rebutted by Counter-affidavits. 1. When an application to open a default judgment is made upon affidavits, the court will hear counter-affidavits only upon the question as to the excuse for permitting the default, but will not permit the facts stated in the defendant's affidavits, which constitute his defense to an action, to be rebutted by counter-affidavits. (Syllabus by the court.) (November 14, 1908.)