Oudenarde v. Van Bergen

1 Cole. & Cai. Cas. 53, 1 Cole. Cas. 47

• Court: New York Supreme Court
• Decided: January 15, 1798
• Status: Published

Opinion

On the last day of term, Mr. Justice Lansing delivered the unanimous opinion of the court.

<£ When this question was presented in the first in- <£ stance, I did suppose that the entry of the default i£ could not, under the existing rule, have any other ££ effect, than merely to preclude the opposite party from pleading; and that the plaintiff might waive “ the entry of the default, and enter a rule for judg- ££ ment.

££ Upon further reflection on the subject, and after “ carefully examining the eighth rule entered in April <£ term, 1796, it appears to me to be the better con- <£ struction, that the entry of the default is indispensa- <£ ble to entitle the plaintiff to his judgment; the ex-11 pression being, ‘ That the default being duly enter- “ ed, the party who shall have had it entered, shall not ££ be held afterwards to accept a declaration or answer, “ as the default shall happen to be, and may at any “ time after four days in term shall have intervened “ thereafter, have a rule for such judgment as is to “ be rendered by law, by reason of the default.’ This 11 imposes it on the party entering the default to “ file the necessary proofs to evince its regularity ; <£ and if any subsequent question arises on that subject, a resort to those proofs affords a determihate 46 test.

££ We are all of opinion that the interlocutory judg- “ ment be set aside.”