Bowen v. Bell

19 Johns. 390

Opinion

Platt, J.

delivered the opinion of the Court. I find no? thing in the statute expressly regulating the practice in a case like the present; but, I am inclined to the opinion, that the Justice erred. There had been no delay occasioned by the defendant. The plaintiff was not ready, on the return of the summons, to proceed ex parte; and the adjournment was at his request. The only effect of entering the default of the defendant for not appearing on the return of the process, was to give the plaintiffliberty, if he thought proper, to proceed, at that time, ex parte. But, as the defendant appeared, and tendered a plea, as soon as the plaintiff was ready to produce proof of his demand, I see no good reason for rejecting the plea. (Sweet v. Coon, 15 Johns. Rep. 86.) The judgment must, therefore, be reversed.

Judgment reversed.

END OF JANUARY TERM.