This court has also uniformly held that the statute should be liberally construed. In King v. Mitchell, 188 Or. 434, 214 P.2d 993, 216 P.2d 269, 16 ALR2d 1128 (1950), the court discussed the policy considerations involved in setting aside a default judgment and said: "The discretion of which the statute speaks is a legal discretion to be exercised in conformity with the spirit of the law and in a manner to subserve and not to defeat the ends of justice.

Railroad Commission of Alabama v. Ala. Great So. R.R. Co., 185 Ala. 354, 64 So. 13; Stewart v. Louisville Nashville R. R. Co., 83 Ala. 493, 4 So. 373; Ex parte Jim Walter Corp., 281 Ala. 670, 207 So.2d 648. Statutes and rules providing for relief against judgments are quintessentially remedial in nature and, therefore, must receive a liberal and enlightened construction. Hover v. MacKENZIE, 122 Cal.App.2d 852, 266 P.2d 60 (2d Dist.Div. 3, 1954); C. Meisel Music Co. v. Perl, 3 Ariz. App. 479, 415 P.2d 575; Tuzer v. Charles A. Krause Milling Co., 189 F.2d 242 (3 Cir. 1951); United States v. Gould, 5 Cir., 301 F.2d 353; Antonopoulos v. Eisner, 30 Ohio App.2d 187, 59 Ohio Op.2d 309, 284 N.E.2d 194 (Cuyahoga County, 1972); King v. Mitchell, 188 Or. 434, 214 P.2d 993, 16 A.L.R.2d 1128, reh. den. 188 Or. 434, 216 P.2d 269, 16 A.L.R.2d 1128; Patapoff v. Vollstedt's, Inc., 267 F.2d 863 (9 Cir. 1959); Beatty v. McClellan, 119 Ind. App. 385, 88 N.E.2d 56; Green v. Montana Drewing Co., 32 Mont. 102, 79 P. 693; Hobbs v. Martin Marietta Co., 257 Iowa 124, 131 N.W.2d 772. If this appeal be pending on the effective date of the Alabama Rules of Civil Procedure, such rules should govern in the disposition of this appeal. Rule 86, Ala. Rules Civ.Proc.; Klapprott v. United States, 335 U.S. 601, 69 S.Ct. 384, 93 L.Ed. 266, modif. 336 U.S. 942, 69 S.Ct. 398, 93 L.Ed. 1099 (1949); United States v. Backofen, 3 Cir., 176 F.2d 263; State v. Watson, 7 Ariz. App. 81, 436 P.2d 175. Under those rules, a party may obtain relief against a final judgment on grounds, among others, of mistake, inadvertence, surprise or excusable neglect or for any other reason justifying relief from the operation of the judgment.

In Oregon, the defense of the statute of limitations is not a technical one in the invidious sense of that word, but is considered meritorious since statutes of limitations are looked on, in that state, with favor as statutes of repose. Eastman v. Crary, 131 Or. 694, 284 P. 280 (1930); King v. Mitchell, 188 Or. 434, 442, 214 P.2d 993, 216 P.2d 269, 16 A.L.R.2d 1128 (1949). A motion for a summary judgment being a proper method by which to raise the legal question, Gifford v. Travelers Protective Ass'n of America, 153 F.2d 209 (9th Cir. 1946); Creditors Committee of Horton Brown Corp. v. Goodhart, 98 U.S.App.D.C. 144, 233 F.2d 23 (1956), the defendant's motion must be allowed.

Therefore, we conclude that, even if the La Grande address had not been defendants' last known address for purposes of ORCP 9 B, the trial court would not have abused its discretion in denying defendants' motion to set aside the judgment based on the theory of mistake on which the Court of Appeals relied. See King v. Mitchell , 188 Or. 434, 441, 214 P.2d 993 (1950) (" ‘If the moving party makes a clear and unquestionable showing that he has a good defense or cause of action on the merits, of the benefit of which he has been deprived without fault on his part , the court has no discretion to deny him relief, and should it do so, its action will be set aside, and proper relief ordered by the appellate court.’ ")

“The second rationale concerns the public policy of allowing people, after the lapse of a reasonable time, to plan their affairs with a degree of certainty, free from the disruptive burden of protracted and unknown potential liability[.]”Id. at 700–01, 530 P.2d 53 (citation omitted); see also Wilder v. Haworth, 187 Or. 688, 695, 213 P.2d 797 (1950) (commenting on statutes of limitation as desirable statutes of repose after the lapse of a reasonable period of time); King v. Mitchell, 188 Or. 434, 442, 214 P.2d 993 (1950) (same). As previously explained, the insertion of procedural elements into ORS 30.075(1) by the legislature did not make this survival statute a statute of limitation.

(Emphasis added) In support of its contention that the trial court abused its discretion in this case defendant has cited King v. Mitchell, 188 Or. 434, 440, 214 P.2d 993, 216 P.2d 269 (1949), in which we held (at 441) that the discretion of which the statute speaks is "a legal discretion to be exercised in conformity with the spirit of the law and in a manner to subserve and not to defeat the ends of justice." We also said in King (at 442) that this statute is to be "construed liberally to the end that every litigant shall have his day in court and his rights and duties determined only after trial upon the merits of the controversy."

"`The authority conferred by statute upon a court to vacate a judgment or a decree * * * is not an arbitrary power, to be employed at pleasure in granting or denying the summary relief invoked, but is a legal discrimination, to be exercised in furtherance of justice, and in accordance with the rules of modern jurisprudence.'" Again, in King v. Mitchell, 188 Or. 434, 214 P.2d 993 (1950), citing Snyder with approval, this court reversed the trial court's order denying the motion to set aside the judgment and stated, at page 442: "The statute [ORS 18.160] is to be construed liberally to the end that every litigant shall have his day in court and his rights and duties determined only after a trial upon the merits of the controversy.

The rule is different where the appeal is from an order refusing to vacate a judgment. King v. Mitchell, 188 Or. 434, 214 P.2d 993, 216 P.2d 269; Fretland v. Cantrall, 78 Or. 439, 153 P. 479; Hanthorn v. Oliver, 32 Or. 57, 51 P. 440, 67 Am St Rep 518. Counsel for the appellants do not dispute the authority of the Carmichael case, but contend that it is not controlling here for the reason, as stated in their brief opposing the motion to dismiss, that the provisions of ORS 18.160 "are not applicable in a case where, such party has filed an Answer, notice of trial date was furnished to his counsel of record, his counsel was present at the trial and availed himself of the opportunity to cross-examine his adversary, and a trial was had."

There, of course, can be no difference of opinion that in general "every litigant shall have his day in court and his rights and duties determined only after a trial upon the merits of the controversy." King v. Mitchell, 188 Or. 434, 442, 214 P.2d 993, 216 P.2d 269. Neither can it be doubted that a litigant may, by his own neglect, forfeit that right.

That being so, there was no room for an implication of assent by the defendant to the correctness of the statement rendered by the plaintiffs based upon the defendant's failure to object to that statement. That is the gist of the decision as set forth more fully in the next to the last paragraph of the opinion ( 214 P.2d 993). We have re-examined the case in the light of Grounds (2), (4), (5) and (6) of the petition for rehearing and find no adequate reason for changing our decision.