By the Court
Emmett, C. J.Tbis case being at issue, and on the calendar for trial in the Court below,.and tbe Defendant having failed to appear and defend at tbe regular term, tbe Plaintiffs took a verdict, and entered judgment for tbe amount thereof, with costs. Tbe judgment was entered in November, 1859, and was afterwards collected on execution. In August, 1860, tbe Court, on tbe application of tbe Defendant, and for cause shown, entered an order u setting aside tbe judgment, opening tbe default, and setting aside tbe verdict of tbe jury.”
Erom tbis order tbe Plaintiffs' appeal, and tbe Defendant now moves tbis Court to dismiss tbe appeal, on tbe ground that an appeal does not lie from such an order.
Tbe proceedings to obtain tbe relief granted by tbe order appealed from, ¿were bad in pursuance of Seo. 94, p. 544, of the Comp. Stat., which expressly authorizes tbe Court, at any time witbin one year. after notice thereof, to relieve a party from a judgment, order, or other proceeding taken against him, through bis mistake, inadvertence, surprise, or excusable neglect. Tbe application for- such relief is addressed to tbe *67discretion of tbe Court, and the decision thereon cannot be appealed from, unless clearly authorized by Statute. An appeal from a decision resting wholly in the discretion of the Court or judge, was unknown to the common law, and although the Statute has to some extent encroached upon this well settled rule, yet it cannot be expected that Courts will extend Statutes of such doubtful propriety much beyond the strict ■ letter of their provisions, nor excite surprise that they uniformly refuse to disturb a decision made in such á case, even where an appeal is clearly given, unless there has been a palpable abuse of discretion on the part of the inferior tribunal.
The Statute, as it existed at the time this appeal was taken, did not authorize an appeal from such an order as was made in this case, unless the right be given by the provisions of Sec. 11, p. 621 Com. Stat., which give an appeal from an order granting or refusing a new trial. It is claimed by the Plaintiffs that the order here appealed from, in effect granted a new trial, and therefore is within the meaning of the section last referred to.
"We are unahle to take this view of the case. The statute recognizes two distinct proceedings. The one, under Sec. 94, p. 544, Com. Stab., to relieve a party from a judgment taken against him, through his mistake, inadvertance, surprise or excusable neglect; the other under Sec. 59, p. 564, Com. Stat., to obtain a new trial for certain causes therein enumerated, which last evidently contemplates cases where there has been an actual trial of the issues joined. From an order made in the proceedings last named, a recent statute has given the right of appeal, but does not extend it to an order made in the proceedings first mentioned.
An examination of the pleadings in this case satisfies us that the taking of the verdict in the manner shown by this record, was not atrial of the issues joined in the sense in which the term “ trial ” is used in the section last above referred to.
The Plaintiffs declared for money paid for the use of the Defendant, as freight due on a certain printing press and materials belonging to the Defendant, alleging a subsequent promise of repayment by the Defendant. The Defendant did not deny the payment as alleged, but set up as a defence that *68tbe Plaintiffs, in consideration that he would establish a printing press at the town of Traverse des Sioux, and then and there print and publish a newspaper, promised to pay to him one thousand dollars, five hundred of which was to be paid on arrival of said press, and the remainder when the first number of said paper should be issued and published. That the freight mentioned was advanced, at his request, by the Plaintiff’s agent, as a part of the five hundred dollars which they had agreed to pay on the arrival of the press and not otherwise. That the Plaintiffs have refused to pay the balance, or fulfill their agreement in any manner. And he also denied that he had ever promised to repay the freight paid by the Plaintiffs. In reply, the Plaintiffs merely deny that their agent paid the money, for which action was brought upon the request set forth in the answer, or that the same was part of five hundred dollars due the Defendant from the Plaintiffs as alleged in the answer.
It is not at all likely that the Plaintiffs, under this state of pleadings, when they took their verdict in the absence of the Defendant, submitted to the jury the issues tendered by the answer, or that they did anything more than would have been required of them in taking their judgment, had the Defendant appeared to the action, but not answered. The judgment under these circumstances was in effect a j ndgment by default. One party fails to appear at the term and the other takes a verdict upon his own proofs alone. And the Plaintiffs stand in respect to this appeal, in no better position than they would have occupied, had the ytaken judgment upon the Defendant's failing to answer, and the Court had afterwards, upon a proper showing, relieved the Defendant from the judgment thus taken against him.
The motion to dismiss the appeal is granted.