specially concurring:
I concur with the majority in affirming the order of the district court denying defendant’s motion to vacate the default judgment. However, I do not agree with the view expressed by the majority and by Mr. Justice Angstman in his dissent that the actions of defendant’s counsel constitute inexcusable neglect.
Under section 93-3905, R.C.M.1947, the court may, upon such terms as may be just, relieve a party or his legal representative from a judgment, order or other proceeding taken against him through his mistake, inadvertence, surprise, or excusable neglect.
The denial of the motion to vacate the default judgment does not necessarily mean that the district court considered the conduct of defendant’s counsel inexcusable neglect.
The district court could have denied the motion on the ground that there was merely an absence of the mitigating factors of mistake, inadvertence, surprise, or excusable neglect.
*41It also could have denied the motion even if it had found any of these mitigating factors present, if at the same time it had found that there was no meritorious defense on the part of the defendant, or that the granting of the relief would not be in furtherance of justice.
Since it is clear that the order of the district court could have been made without a finding of inexcusable neglect, which in fact was the case, likewise the order could be affirmed without a finding of inexcusable neglect.
The district court did not abuse its discretion in denying the motion and there was substantial evidence to support the order, so I would affirm the order on that basis.
But there was not a showing of inexcusable neglect. There was, at most, mistake or inadvertence.