Smith v. Bohn

22 F. Cas. 458, 4 Wash. C. C. 127

Opinion

WASHINGTON. Circuit Justice.

The reasonable construction of this act seems to be, that, to entitle the plaintiff to file a common appearance for the defendant, and to enter up judgment against him by nihil dicit, the writ must have been served ten days, and the declaration filed five days before the return day. But if the plaintiff does not seek to avail himself of this privilege, but is content to proceed in like manner as if the defendant had not made default, there can be no reason for setting aside the writ, or why the plaintiff may not file liis declaration at any time after the five days, and proceed as if the defendant had entered an appearance.

Let the rule be discharged.