Therefore the defendant is not required to prove his defense as he would on the trial, nor can his affidavit of merits be controverted": Gracier v. Weir, 45 Cal. 53; Francis v. Cox, 33 Cal. 323; Hill v. Crump, 24 Ind. 291; Buck v. Havens, 40 Ind. 221; Joerns v. La Nicca, 75 Iowa, 705; Hanford v. McNair, 2 Wend. 286. We are of the opinion that the appellant's contention is correct, and that the counter-affidavits and exhibits, so far as they tended to controvert the merits of the defendant's defense, were clearly irrelevant and inadmissible, and should have been disregarded by the court below. Did the court err in discharging the order to show cause, and denying to defendant the relief sought by him? The affidavit of the defendant on which the order to show cause was issues denies all indebtedness to plaintiff, and states fully the facts on which he relies to show inadvertence, surprise, and excusable neglect. This affidavit also contained an affidavit 536 of merits, and was accompanied by a proposed verified answer. The defendant, among other things, states in his affidavit "that he did not understand it was necessary for him to put in an answer to protect his rights, but thought that the matter could be settled up without suit; . . . . that he was never sued before, and did not understand that plaintiff's attorneys could enter judgment against him without further notice; and that, to his great surprise and astonishment, the next day [after his conversation with Mr. McMartin, hereinafter stated] the sheriff came to him with an execution, claiming that plaintiff's attorneys had taken judgment against him for about four thousand six hundred dollars." He also states that in a conversation with Mr. McMartin, one of plaintiff's attorneys, about the time judgment was taken in the case, "he understood him to say that he [defendant] could have thirty days more time in which to make a settlement with plaintiff." Mr. McMartin, in his affidavit, denies that he gave defendant further time, but this does not disprove defendant's statement that he so understood him. While these matters stated by defendant as reasons why he did not answer in time are not of the most satisfactory character, yet, taken in connection with the circumstances surrounding the case, they make, we think, a case entitling defendant to relief. It appears from the affidavit of Mr. Carland, and letters of defendant written by him to the law firm of McMartin and Carland, that he was exceedingly apprehensive of the effect of litigation upon his business, and that he was continually appealing to plaintiff's attorneys for further time in which to make a settlement of his matters with plaintiff; many of the letters being written after the summons and complaint were served upon him. So great appears to have been his anxiety upon the subject of this litigation, that he seems to have had a confused idea of the nature and object of the proceedings taken against him, and of the duties of a defendant to protect himself against such proceedings by retaining counsel and acting under his advice, as a prudent business man would have done. The section of our code conferring upon courts the power to grant relief in such cases, is section 4939, which is as follows: "The court 537 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, and may supply an omission in any proceeding; and whenever any proceeding taken by a party fails to conform in any respect to the provisions of this code, the court may, in like manner, and upon like terms, permit an amendment of such proceedings, so as to make it conformable thereto." The provisions of this section are exceedingly liberal in their terms, remedial in their character, and were evidently designed to afford parties a simple, speedy, and efficient relief in a most worthy class of cases. The power thus conferred upon courts to relieve parties from judgments taken against them by reason of their mistake, inadvertence, surprise, or excusable neglect should be exercised by them in the same liberal spirit in which the section was designed, in furtherance of justice and in order that cases may be tried and disposed of upon their merits. When, therefore, a party makes a showing of such mistake, inadvertence, surprise, or excusable neglect, applies promptly for relief, after he has notice of the judgment, shows by his affidavit of merits that prima facie ho has a defense, and that he makes the application in good faith, a court could not hesitate to set aside the default and allow him to serve an answer upon such terms as may be just under all the circumstances of the case: 3 Wait's Practice, 665, 666; Security Bank v. Bank of Commonwealth, 2 Hun, 287; Com missioners v. Hollister, 2 Hilt. 588; Hill v. Crump, 24 Ind. 291; Bertline v. Bauer, 25 Wis. 486; Stafford v. McMillan, 25 Wis. 566; Lynde v. Verity, 3 How. Pr. 350; Davenport v. Ferris, 6 Johns. 131; Tallmadge v. Stockholm, 14 Johns. 342; Packard v. Hill, 4 Cow. 55; Wieland v. Shillock, 24 Minn. 345. See also Gracier v. Weir, 45 Cal. 53; Francis v. Cox, 33 Cal. 323; and Joerns v. La Nicca, 75 Iowa, 705, before 538 cited. Counsel for respondent have cited a number of cases f.om the earlier reports of California, in which the courts of that state held the rule against setting aside defaults quite strictly, but the later cases of Gracier v. Weir, 45 Cal. 53, and Francis v. Cox, 33 Cal. 323, show that a much more liberal rule has since prevailed in that state, and that the rule as laid down in those earlier cases has been very materially modified. We recognize the rule that, on applications for relief under this section, much must be left to the sound judicial discretion of the court to which application is made, but we are of the opinion that in the case at bar the defendant was entitled to relief, and that the court below should have granted it. The facts should have been taken into consideration by the court that the judgment is for quite a large amount, and that it is principally for profits alleged to have been received by defendant on resales of flaxseed, claimed by plaintiff to have been purchased by defendant for his account. Such a case should be heard upon its merits. But the setting aside the default and permitting defendant to serve an answer in such a case should be, upon the terms, in addition to costs, that the judgment stand as security for any judgment that may be recovered, or, in lieu thereof, a good and sufficient bond should be given, conditioned for the payment of any judgment that may be recovered on a trial of the action, such judgment, pending the final disposition of the case, to have no other effect than as a security. In pursuance of the authority conferred by the provisions of section 4939 of the Compiled Laws, as well as by its general powers, a court may modify a judgment by depriving it of its ordinary character as res adjudicata, and leaving it in full force as a lien or collateral security: Mott v. Union Bank, 38 N. Y. 18; 35 How. Pr. 332; Anonymous, 6 Cow. 390; Wilson v. White, 7 Cow. 477. The order of the court below discharging the order to show cause, and denying the defendant leave to serve an answer is reversed, and the court is directed to enter an order granting defendant leave to serve an answer upon such terms as may be just and as will secure to plaintiff the payment of any judgment it may recover in the action. All the judges concurring. JUDGMENTS BY Default-GrOUNDS FOR VACATING.—If a defendant fails to make his defense to an action because, after consulting with an attorney, he is advised that his defense is not good in law, and he relies on that advice, he may on motion be relieved from a judgment subsequently entered against him by default: Douglass v. Todd, 96 Cal. 655; 31 Am. St. Rep. 247; Whereatt v. Ellis, 70 Wis. 207; 5 Am. St. Rep. 164, and note. A judgment by default is properly set aside on the ground of surprise or excusable neglect when such judgment was entered through the failure of counsel to act after being engaged by the defendant to enter a plea for him: Taylor v. Pope, 106 N. C. 267; 19 Am. St. Rep. 530, and note. A judgment by default may be set aside upon sufficient showing, even though it was caused by a mistake which related to a matter concerning which the party is charged with notice by law: Jean v. Hennessy, 74 Iowa, 348; 7 Am. St. Rep. 486, and note. See also the notes to the following cases, Ratliff v. Baldwin, 92 Am. Dec. 332, and Burnham v. Hays, 58 Am. Dec. 397. BOARD OF EDUCATION OF RAPID CITY V. Sweeney. [1 SOUTH DAKOTA, 642.] OFFICIAL BONDS-LIABILITY OF SURETY.-An official bond in which the officer is named as principal, but which is not executed by him, is prima facie invalid, and not binding upon the sureties named therein. William Gardner, Schrader and Lewis, and W. H. Mitchell, for the appellants. John W. Nowlin, for the respondents. 642 CORSON, P. J. This was an action on the official bond of Bentley B. Benedict, probate judge of Pennington county. A 643 trial was had before a jury, and a verdict and judgment rendered for plaintiff. A motion for a new trial was made, and overruled, and the defendants appeal from the judgment and order overruling the motion for a new trial. The bond upon which the action was based is as follows: "OFFICIAL BOND AND OATH FOR COUNTY OFFICERS. "Know all men by these presents that we, Bentley B. Benedict, as principal, and Francis J. McMahon, Joseph B. Gossage, Abram Boland, Thomas Sweeney, Joseph B. Gossage, P. B. McCarthy, Charles Roberts, Louis Volin, and Herbert S. Hall, as sureties, of the county of Pennington and territory of Dakota, are held and firmly bound unto the county of Pennington, in the territory of Dakota, in the penal sum of five thousand dollars, lawful money of the United States, to be paid to the said county of Pennington, for which payment well and truly to be made we bind ourselves, our executors, and administrators, jointly and severally, by these presents. Sealed with our seals and dated this ninth day of January, A. D. 1883. The condition of the above obligation is such that whereas, the said Bentley B. Benedict has been elected to the office of probate judge within and for the county of Pennington, Dakota territory: Now, therefore, if the said Bentley B. Benedict shall faithfully and impartially discharge the duties of his said office of probate judge, and render a true account of all moneys, verdicts, accounts, and property of any kind that shall come into his hands as such officer, and pay over and deliver the same according to law, then the above obligation to be void; otherwise to remain in full force and virtue. "FRANCIS J. MCMAHON, "JOSEPH B. Gossage, "ABE BOLAND, [SEAL] [SEAL] [SEAL] "Signed in the presence of J. F. Schrader. 644 Territory of Dakota, County of Pennington-ss.: L, Bentley B. Benedict, having been elected to the office of probate judge within and for the county of Pennington, do solemnly swear that I will support the constitution of the United States, and the act organizing this territory, and that I will faithfully and impartially, to the best of my knowledge and ability, perform all the duties of my said office of probate judge, as provided by the condition of my official bond written within. BENTLEY B. BENEDICT. "Subscribed and sworn to before me this ninth day of January, A. D. 1883. J. S. GANTZ, County Clerk, By A. P. STERLING, Deputy.' The bond was filed January 9, 1883, and approved February 15, 1883. The appellants rely for a reversal of the judgment upon four propositions, which are stated in their brief as follows: 1. This is no bond because not executed by principal; 2. It was not given to cover the duties of trustee of the townsite; 3. If |