On the Merits.
BURNETT, J.Section 103, Or. L., reads thus:
“The court may likewise, in its discretion, and upon such terms as may be just, allow an answer or reply to be made, or other act to be done after the time limited by this Code, or by an order enlarge such time; and may also, in its discretion, and upon such terms as may be just, at any time within one year after notice thereof, relieve a party from a judgment, order, or other proceeding taken against him through his mistake, inadvertence, surprise, or excusable neglect.”
The plaintiff brought action against the county of Klamath on four assigned claims for service alleged to have been rendered for the county by other individuals in detection of violations of the prohibition law. Service of summons in the action was made by delivering the same with a copy of the complaint to the county clerk. After the expiration of ten days, *379no answer having been filed, the Circuit Court entered judgment against the county by default on December 14, 1921. On the 17th of that month a certified copy of the judgment was presented to the County Court for the purpose, it seems, of procuring a warrant on the treasury for its payment. The county judge and the two commissioners make affidavit that that was the first intimation any of them had received of the pendency of the action, without reference whatever to the rendition of the judgment. Based on this showing, a motion was made to set aside the judgment and give leave to answer. Other efforts were made to take off the default and be allowed to file an answer, which answer being tendered at the time shows that the identical claims sued upon were adjudicated adversely to the claimant in Irwin v. Klumath County, 93 Or. 538 (183 Pac. 780). Opposed to this showing are the affidavits of the county clerk and his deputy to the effect that when the summons was served upon the clerk, he put the papers in the basket with other County Court proceedings which were to come before the County Court; that afterwards the deputy laid the papers on the table between the two commissioners stating at the time, “Here are the papers in the case of John Irwin against Klamath County,” and that one of the commissioners at the time said that he had noticed something about it in the newspaper. These affidavits are controverted by the counter-affidavits of the commissioners. The Circuit Court refused to take off the default on this showing and the defendant appeals.
The case principally relied upon by the defendant is Knox County v. Harshman, 133 U. S. 152 (33 L. Ed. 586, 10 Sup. Ct. Rep. 257, see, also, Rose’s U. S. Notes). That was a suit in equity to enjoin the prosecution of a peremptory writ of Mandmnus issued to *380compel the County Court of Ilnox County to levy a tax sufficient to pay a judgment recovered by Harsh-man against the county. As ground for enjoining the prosecution of the mandamus, the bill in equity attacked the judgment which was rendered by default, on the ground that the bonds, the basis of the judgment, were not authorized by the voters of the county, that the summons in fact had not been served in that action, and that the clerk of the county upon whom it was served, if served at all, did not give any notice thereof to the County Court controlling the fiscal concerns of the county. All that the opinion of the court by Mr. Justice Gray holds is that for the grounds of complaint against the judgment, the county had a plain and adequate remedy at law in that very action itself to set aside the judgment on the grounds of mistake, inadvertence or excusable neglect, or possibly fraud, and that equity could not entertain the plea because of the availability of the remedy at law. Here, no one disputes but what the summons was properly served. The defendant is pursuing the remedy at law pointed out by Mr. Justice Gray in the Knox County case. The only question is whether the county has shown surprise, inadvertence or excusable neglect sufficient to authorize the taking off of the default. The affidavits of the members of the County Court explicitly state that the first actual notice they had of the pendency of the action was after the judgment had been rendered. The clerk says he put the papers in a basket with other business afterwards to come before the county clerk. The deputy only says that he laid the papers on the table and told the commissioners they were papers in the case of John Irwin against the county. Ignoring the dispute of this affidavit by those of the commissioners, they might *381well have supposed he meant the former action against the county already alluded to and cited above. Without further discussion, we are of the opinion that it was an abuse of discretion to allow the county and its taxpayers to be penalized upon a claim which had already been adjudicated adversely to the claimant on appeal to this court. The judgment is reversed and the cause is remanded to the Circuit Court with directions to open the default and allow the defendant to file its answer, and for further proceedings not inconsistent with this opinion.
Reversed and Remanded.
McBride, C. J., and Rand and Coshow, JJ., concur.