(dissenting):
I am constrained to dissent since the main opinion addresses the merits of the case rather than confining its review to the sole issue presented, viz., whether the trial court abused its discretion by granting a motion to set aside a default judgment conditioned upon the payment of an attorney’s fee.
The setting aside of defaults and judgments is an equitable procedure provided by U.R.C.P. Rule 55(c) thereof contains the following:
For good cause shown the court may set aside an entry of default and, if a judgment by default has been entered, may likewise set it aside in accordance with Rule 60(b).
and Rule 60(b) referred to therein sets forth the bases for relief from judgment:
On motion and upon such terms as are just, the court may in the furtherance of justice relieve a party or his legal representative from a final judgment, order, or proceeding for the following reasons: (1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59(b); (3) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party; (4) when, for any cause, the summons in an action has not been personally served upon the defendant as required by Rule 4(e) and the defendant has failed to appear in said action; (5) the judgment is void; (6) the judgment has been satisfied, released, or discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective application; (7) any other reason justifying relief from the operation of the judgment. The motion shall be made within a reasonable time and for reasons (1), (2), (3), or (4), not more than three months after the judgment, order, or proceeding was entered or taken. A motion under this subdivision (b) does not affect the finality of a judgment or suspend its operation. This Rule does not limit the power of a court to entertain an independent action to relieve a party from a judgment, order or proceeding or to set aside a judgment for fraud upon the court. The procedure for obtaining any relief from a judgment shall be by motion as prescribed in these Rules or by an independent action. [Emphasis added.]
Defendant moved to set aside the default judgment based on the following considerations, none of which meet the bases for relief as set forth in said Rule 60(b):
1. The affidavit of Defendant.
2. Defendant’s Memorandum of Law.
3. That Plaintiff is not entitled to recover attorney’s fees based upon an oral lease.
4. That counsel for Plaintiff has failed to file a timely Memorandum of costs.
5. That Utah’s Landlord Lien Statute, Utah Code § 38-3-3, et seq., is unconstitutional on its face and as applied to Defendant.
6. That Plaintiff has in his control or possession certain items of personal property belonging to Defendant in violation of Utah Code § 78-23-1.
The record before us does not contain the memorandum referred to in the motion, but it does contain the defendant's affidavit. *856Paragraphs 8 through 10 thereof deny that she was personally served which is a basis for relief under Rule 60(b)(4). Those paragraphs read as follows:
8. That she first received a copy of Plaintiff’s Complaint on January 6, 1978, and was unaware of legal proceeding against her until that day.
9. That, upon information and belief, that another tenant may have been served with the Complaint by misrepresenting her identity as Terri Meadows to the process server, and did not give the papers to Defendant.
10. That said tenant, LeiLani Long, did so misrepresent her identity to a process server when an eviction notice was served, and Plaintiff delivered said notice from her to Defendant.
In light of the foregoing, the trial court ordered the default judgment set aside, conditional upon the payment of an attorney’s fee of $150, and, on its own motion,1 ordered that said $150 “be restored to defendant if the service on the defendant was improper.” Subsequently, the court amended its order to permit the $150 to be paid into court. (Apparently this was for defendant’s protection in the event her allegation of no personal service was subsequently found to have merit.)
Defendant failed to pay over said $150 to the court without offering any explanation or justification.
Defendant designates this appeal as being from “all orders entered in this action,” without specifying them, and for the first time challenges the default judgment on the merits of the case.2
In regard to whether this Court should look to the merits of the case in considering the propriety of a refusal to vacate a default judgment, the case of Board of Education of Granite School District v. Cox3 had this to say:
It is largely within the discretion of the trial court whether a default judgment should be relieved, which discretion will not be disturbed unless there is a patent abuse thereof.1 The question then arises,
1 Ney v. Harrison, 5 Utah 2d 217, 299 P.2d 1114; See also Warren v. Dixon Ranch Co., 123 Utah 416, 260 P.2d 741; Peterson v. Crosier, 29 Utah 235, 81 P. 860.
on this appeal, whether or not the trial court abused its discretion.
The courts will generally grant relief'’in doubtful cases so that a party may have a hearing. As the court stated in Warren v. Dixon Ranch Co., 123 Utah 416, 260 P.2d 741:
“The allowance of a vacation of judgment is a creature of equity designed to relieve against harshness of enforcing a judgment, which may occur through procedural difficulties, the wrongs of the opposing party, or misfortunes which prevent the presentation of a claim or defense.”
We view a default judgment with a careful eye but in doing so we acknowledge that a trial court is endowed with considerable latitude of discretion in granting or denying a motion to set such a judgment aside.2 It is an abuse of discre-
2 Mayhew v. Standard Gilsonite Co., 14 Utah 2d 52, 376 P.2d 951.
tion to refuse to vacate a default judgment where there is reasonable justification for the defendants’ failure to appear and answer.3 However, the excuse must
3 ibid.
be reasonable to constitute excusable neglect. .
Appellant in asserting the Statute of Frauds and lack of consideration has set forth defenses which apply to the merits of the case and have no application as to why appellant did not answer within the time allotted. We are concerned only with why he did not answer, not with *857what kind of answer would he give if he were so inclined. This latter question arises only after consideration of the first question and a sufficient excuse therefrom being shown. [Emphasis added.]
This Court in Pitts v. Pine Meadow Ranch, Inc.4 sanctioned the payment of reasonable and necessary expenses of the opposing party when a default judgment is set aside. That holding is wholly consistent with our prior decision in Chrysler v. Chrysler5 wherein it was stated:
Manifestly the court should not follow the rule of indulgence toward the party in default when the effect would be to work an injustice or inequity upon the opposing party.
I would affirm the judgment below.
. As reflected in Court’s minute entry of March 3, 1978.
. That matters are not to be considered for the first time on appeal, see Dugger v. Cox, Utah, 564 P.2d 300 (1977).
.14 Utah 2d 385, 384 P.2d 806 (1963), cited with approval in Airkem Intermountain, Inc. v. Parker, 30 Utah 2d 65, 513 P.2d 429 (1973); See also, Warren v. Dixon Ranch Co., 123 Utah 416, 260 P.2d 741 (1953).
. Utah, 589 P.2d 767 (1978).
. 5 Utah 2d 415, 303 P.2d 995 (1956); see also 21 A.L.R.2d 863 and 3 A.L.R.Fed. 956 which collect a number of cases in accord.