(concurring specially). I concur in an affirmance of the order denying defendant’s application to vacate the default judgment hc.ein. Under the express terms of the statute (Comp. *133Laws 1913, § 7483), an application to vacate a default judgment on the ground of mistake, surprise, or excusable neglect, is addressed to tbe sound judicial discretion of the trial court on tbe particular facts of tbe case. And consequently its determination will not be disturbed on appeal unless it is plain that its discretion bas been abused. 23 Cyc. 895.
On such application tbe prime question is whether tbe moving party bas presented a sufficient excuse for bis negligence. Tbe affidavit of merits or tbe allegations of tbe answer cannot be controverted, and the court will examine tbe defense pleaded only to ascertain whether tbe same, on its face, constitutes a defense, but will go no further. Minnesota Thresher Mfg. Co. v. Holz, 10 N. D 16, 84 N. W. 581; Black, Judgm. 2d ed. § 348.
An examination of tbe affidavits submitted on tbe questions of mistake and excusable neglect in this case, in my opinion, discloses a state of facts peculiarly requiring tbe exercise of judicial discretion, and I am satisfied that this court would not be justified in saying that tbe trial court abused its discretion in refusing to open tbe default judgment, or that any injustice will result by reason of such ruling.
I am authorized to say that Chief Justice Bruce and my associates Birdzell and Grace fully concur in my views herein.