The Code, s. 133, provides, that a Judge may, in his discretion, and upon such terms as may be just, at any time within one year, after notice, relieve a party from a judgment, order, or other proceeding taken against him through his mistake, inadvertance, surprise or excusable neglect.
In this case the motion was made more than a year after its rendition; but it was agreed to be considered as if it had been made within time. So there is no difficulty about that.
His Honor heard evidence as to the facts under which the judgment was rendered; and refused to set it aside because he supposed he had not the power.
What were the facts, was a question exclusively for his Honor. In such cases the Judge is the trier of the facts, as the jury is in ordinary cases; and from his finding there is no appeal.
After hearing the evidence and finding the facts, it is discretionary with the Judge, to set aside the judgment or not; and from the exercise of his discretion, there is no appeal. But *395this must be understood with the qualification, that it is not altogether an arbitrary discretion; for, if in ascertaining the facts, or exercising his discretion, he make a mistake of the law, that mistake can be appealed from. As, for instance, it ■competent evidence be offered and rejected; or, if he mistake the meaning of the statute as to what is, “ mistake, inadvertence, surprise, or excusable neglect.” In such case he may be reviewed; because that is not the exercise of a discretion, but a misapprehension of the law; and no one has a discretion to misapply the law. So, in the case of an application for the removal of a case, the Judge has a discretion, the exercise of which we cannot review, unless it appear that some principle ■of law is misconceived and misapplied.
In the case before us, his Honor did not exercise his discretion upon the merits, but supposed that he had no “power ” to «et the judgment aside, even if the merits required it. Whether he had such power, is a question of law. We think he had the power.
There is error. Let this be certified.
Per Curiam, Error.