ON REHEARING.
SULLIVAN, J.This ease was submitted to this court at its March term, 1908, and was decided by the court on May 5, 1908 (ante, p. 363, 97 Pac. 1028). Thereafter a petition for rehearing was granted and the case was again orally argued at the October term of this court. The facts necessary to an understanding of the case are set forth in the former opinion and will not be repeated here.
The only point urged on the rehearing was that the court had erred in considering counter-affidavits on the motion to set aside the default, which affidavits, it is contended, controverted the facts set up as a defense. We did not consider in the former opinion that the facts referred to in the counter-affidavit were a contradiction of the proposed defense, but considered them as further and additional facts connected with said transaction that had not been set out in the proposed defense. But conceding that they were contradictory of the facts set up as a defense to the action, it would be of no consequence in this case, for the reason that the facts plead do not constitute a defense.
It is well settled that a default will not be set aside unless a sufficient affidavit of merits is filed, which affidavit should show sufficient cause for setting aside the default as well as the facts that would constitute a defense to the action; but proper practice does not permit the facts stated in the applicant’s affidavit, which constitute his defense to the action, to be rebutted by counter-affidavits. The court will *370not try the merits of the case upon affidavits, but will hear counter-affidavits as to the excuse for permitting the default. (Douglas v. Todd, 96 Cal. 655, 31 Am. St. Rep. 247, 31 Pac. 623; 23 Cyc. 958.)
The defendants in their application to set aside the default as a defense set forth a certain contract or stipulation entered into between this appellant and the sheriff of Kootenai county, and another, whereby certain proceedings or actions then pending should be settled and adjusted, one of which actions involved the personal property which is sought to be replevined in this case. The third and fourth paragraphs of that stipulation are as follows:
“3. That the plaintiff Simon Beck 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.
“4. That the plaintiff Simon Beck out of the personal property so covered by said chattel mortgage, or otherwise, pay the costs and expenses of the sheriff for keeping and caring for said personal property, if any, since the same has been in the hands of the said sheriff.”
In that stipulation, the sheriff, who had taken possession of that property, stipulated that this appellant should have said personal property “free and clear from any and all claims on the part of the defendants or either of them”; and it was further provided that this appellant should pay the costs and expenses of the sheriff for keeping and caring for said personal property out of said personal property or otherwise. It was there left optional with the appellant whether he pay the costs out of this personal property or otherwise. He was at liberty to pay all costs out of whatever funds he might deem best. We think the clear intention of the parties to that stipulation was to turn said personal property over to the appellant, and the sheriff apparently was willing to take the appellant personally for the payment of his costs and charges in holding the same. We think this conclusion is irresistible from the wording of said stipulation. That being true, Beck was entitled to the immediate posses*371sion of said property, and the keepers appointed by the sheriff to hold the same had no legal authority to detain it, as they must look to the sheriff for their costs of keeping the same, and had no lien on the property therefor.
We therefore conclude that the defendant has failed to set up a meritorious defense or any defense at all, and for that reason the trial court erred in setting aside said default.
The order setting aside said default must be reversed and the cause remanded for further proceedings in accordance with the views expressed in this opinion.
Ailshie, C. J., and Stewart, J., concur.