dissenting :
Regretfully I find it necessary to dissent from the majority opinion. The reasons are twofold. First, because this appeal appears to me to come squarly within the rule laid down in Robinson v. Petersen, 63 Mont. 247, 260 Pac. 109.2, and which case, while it has not always been carefully, followed, has never been reversed by this court. Secondly and more important, it appears to me that the proposed answer filed by the appellant at the time of the motion to set aside the default wholly fails to set forth any bona fide or valid defense to the original action.
The “defaulted party must show that he has a defense, otherwise the court cannot determine whether justice will be promoted or retarded by setting aside the default.” Holen v. Phelps, 131 Mont. 146, 150, 308 Pac. (2d) 624, 627, and cases cited therein.
The record before us discloses that the appellant took possession of the respondents’ real property on or about May 1, 1952, under a contract of purchase that called for payments of $135 per month. The respondents’ complaint alleges a default of the contract of purchase and sets out as an exhibit to the complaint a record of the payments made. The first default was for the month of October 1954, and in 1955 appellant made payments of $135 in February, March and May and an additional payment of $65 in this same month, of May. No other payments have ever been made. The insurance premiums have not been paid nor the taxes as required by the contract. On April 11, 1956, the vendor respondents served written notice upon the purchaser, of the default, and demanded either that the default in payments be cured or that possession of the property be restored. The notice was full and complete and attached thereto was the list *9of the payments that had. been made. On May 15, 1956, suit was filed to foreclose the contract and recover possession of the property. None of the essential allegations of the plaintiffs’ complaint above set forth are denied in the defendant’s proposed answer. The proposed answer contains four separate defenses, the first being that another aetion is now pending. If this should be the ease, it should be raised by special demurrer and not by answer. The other three affirmative defenses are all in substance based upon a charge of misrepresentations on the. part of the sellers. These charges of misrepresentations amount to the following: that the defendant agreed to pay too much for the property in the first place as it was worth only $10,000 instead of the $17,000 as contracted for; that the roof leaked; that some portions of the property were in a bad state of repair-; that the property was “not in good and tenantable condition”; that the sellers knew all these things and misrepresented them to the purchaser; and that the buyer was entitled to rely upon such representations because he, the buyer, “had no opportunity to inspect the roofs, etc.”, and that he “had no experience in buying real property.”
To give probative force to the sort of answer set up here by the defendant taxes my credulity too far. The purchaser has occupied this property since May 1, 1952, and presumably still does. On June 22, 1956, over four years after taking possession and some twenty months after the first default in the contract, and after default of appearance in the case now on appeal this, court is asked to permit the suit to be tried “on its merits,”' with the foregoing as a defense. I do not subscribe to the doctrine that courts should be as blind as Justice is usually depicted as She hold the scales of the law. The law aids the vigilant. R.C.M. 1947, sec. 49-119.
It seems appropriate here to quote an observation of Dr. Borchard appearing in the preface of his Second Edition.of' Declaratory Judgments on page VIII, where he says: “* * * many members of the bench and bar not unnaturally acquire-the view that the technicalities characterize the profession and *10the system, and that they exist for the delectation and benefit of the votaries.of the priesthood itself; they are inclined to forget that both bench and bar are merely servants of the people, the better to enable the administration of justice to be [speedily] accomplished.”
And also it is to be noted that, “Law is an intensely practical affair. Regardless of the height of abstraction or idealism from which it issues, it must come to earth and walk with men who act and work before it becomes a living reality. * * *
‘ ‘ The meaning of the law proves to be not that which was decreed in the cloisters of draftsmen, professors or the writers of texts [or even in opinions of appellate courts] but that which is wrought in everyday, down-to-earth experience, in the effort of practical folk to apply the law to actualities.” 1 Cal. J.I.C. 223.
I would affirm the court below and refuse to set up another monument to the long delays of which we have entirely too many in. the history of the law.