Reynolds v. Fountain

4 Hill & Den. 52

• Court: Court for the Trial of Impeachments and Correction of Errors
• Decided: December 15, 1842
• Status: Published

Opinion

By the Courts

Bronson, J.

I think the defendant’s counsel is right on this point of practice. Nothing but the judgment was set aside. The notice which had been given requiring the plaintiff to proceed to a hearing was not touched, and the defendant was at liberty to act upon it and enter a new default without further notice. Prior to 1837, the practice was to enter a rule and give notice that the plaintiff proceed within twenty days. (See 44th rule of 1830.) But in 1837, this and many other useless rules were abolished, and nothing but a notice, was required. The analogy between this notice to proceed in twenty days and a rule to plead within the like period is complete. If the default entered in either case for not complying with the notice or rule be set aside,.it cannot be necessary to give a new notice or enter a new rule. The old one has not ceased to operate, and another default may be based, upon it. When a default for not pleading is set aside) and no further order is made,, the party must plead immediately, or another default may be entered. If he wants time, he should see that time is given by the order. So here, when the first judgment was set aside, the plaintiff should have asked as much time as he thought necessary for bringing on the hearing) and the allowance should have been inserted in the order. The judgment is regular, but the plaintiff must be relieved orii terms.

Ordered accordingly;