Aldrich v. Crump

128 F. 984, 1904 U.S. App. LEXIS 4727

• Court: U.S. Circuit Court for the District of Eastern Pennsylvania
• Decided: March 31, 1904
• Docket: No. 351
• Status: Published

Opinion

J. B. McPHERSON, District Judge.

It must be conceded that this is a close case. I am satisfied, however, that the defendant did not have actual notice of the service of the summons, although a legal service seems to have been made upon an adult member of the family; that she knew nothing about the suit, or the judgment, until an attachment execution was issued in August, 1903, xx years-after the judgment was taken by default; and that she did not authorize an appearance to be entered in her behalf, although such authority was given in form by her husband without her knowledge. Immediately upon learning of the judgment she applied for this rule, and she must be acquitted, therefore, of the charge of laches, for she acted as soon as the facts were actually brought to her notice. On the merits, the application is open to some-criticism, as I have already indicated, but on the whole of the evidence I think enough appears to justify me in permitting the defendant to submit her defense to a jury.

The rule to open the judgment is therefore made absolute; and it is further ordered that the defendant’s affidavit, upon which the rule was granted, shall stand as an affidavit of defense, and that the defendant plead to the plaintiff’s statement on or before the 15th day of April.