concurring:
I concur in the judgment. As said by this court in Symons-Kraussman Co. v. Reno Liquor Co., 32 Nev. 243, 107 Pac. 97, "the wide power of discretion vested in trial courts on motions of this character in furtherance of *266justice” may not be disturbed except in a clear case of abuse of discretion. From the record in this case, disclosing many affidavits in support of and in opposition to the motion, it cannot be said that the court abused its discretion in setting aside the default. I am of the opinion, however, that the court should have permitted counsel for the plaintiff to have filed any further affidavit he desired relative to the mailing of copies of summons to the defendant.
A liberal rule prevails in permitting amendments. (Elder v. Frevert, 18 Nev. 279, 3 Pac. 237.) The original affidavit filed was clearly erroneous. If it or the proposed amendatory affidavit contained statements wilfully false, the affiant could be held responsible therefor in appropriate proceedings thereafter. Whether the court should feel justified in accepting the affidavit as conclusive of the averments therein contained is a different matter.
It seems that the order for judgment was made without a reading or examination of the affidavit of mailing; in fact, that the order was made before such affidavit had been filed. Much of the subsequent controversy might have been avoided by a little more care in this regard. If it were necessary to determine that perjury had been established in this case, I should have some hesitancy in concurring in the judgment. Proof of perjury must be clear and convincing. I think a serious question is presented as to whether the proofs are sufficient to warrant the conclusions of the trial court in this respect. In the view I take of this case, however, it is immaterial whether perjury was or was not committed in the proceedings. The defendant was not personally served with process in this case, and she had a right to move within six months after the rendition of the judgment to answer to the merits of the original action. (Rev. Laws, sec. 5084; Lang Syne M. Co. v. Ross, 20 Nev. 136, 18 Pac. 358, 19 Am. St. Rep. 337; Young v. Fink, 119 Cal. 109, 50 Pac. 1060.)
Defendant accompanied her motion to set aside with a proposed answer and other affidavits of merits. It cannot therefore be said that the order was improvidently entered.