Spencer v. Webb

1 Cai. Cas. 118, 1 Cole. & Cai. Cas. 194

• Court: New York Supreme Court
• Decided: August 15, 1803
• Status: Published

Opinion

Per Curiam.

It appears that the defendant did not enter any appearance before the expiration of the rule, nor indeed was it until some weeks after that any appearance was entered. It is suggested in answer, that notice ought to have been served of the entry of the rule; this is, on the other hand, denied; and rightly. The default, therefore, is regular, and no reason whatever is assigned how it has been incurred. In all such cases we have determined to hold the party to his default, The rule

(a) of this court says, “ Upon the return of writs sci. fa. if the defendant be returned warned, or the second writ be returned nihil, the defendant shall ^appear in four days, or [*121] judgment shall be entered by default.” Therefore the entry of the default is perfectly consistent with the practice of the court, and must remain. But as judgment ought not to have been signed till four days after, and it appears to have been done on the very day, that is irregular, and therefore must be set aside.(b),[1]

Motion granted, as to setting aside judgment only.

Radcliff and Livingston, Justices, absent.

а) Rule of October, 1791, Cole. Cas. 31.

On a- verdict a rule nisi for judgment may be entered the first, or any other day in term, Rose v. Rock, 6 Johns. Rep. 330, though an order to stay proceedings has been obtained, Hackley v. Hastie and Patrick, 3 Johns. Rep. 252. But even an interlocutory judgment on a default cannot be entered in vacation, though a term has elapsed since entering the default. Hogeboom v. Genet, 6 Johns. Rep. 325. Before a default can be entered, for vjant of a plea, there must be twenty days after service of notice, which are counted one day exclusive, and one day inclusive; that is, you exclude the day whereon the service is made, and include, as within time, the twentieth day afterwards, within the whole of which day the defendant has to. plead, and a default cannot be entered till the day after, or on the twenty-second day. Hoffman v. Duel, 5 Johns. Rep. 232. If the time thus calculated expire on a Sunday, the default cannot be entered till the Tuesday, for the defendant has the Monday, because he is entitled to twenty law days, and Sunday, being dies non jurídicas, is as no day. Cock v. Bunn, 6 Johns. Rep. 326 If this mode of calculation had heen adopted, the default would have been entered too soon; for it was entered on the fourteenth, on a return of the tenth. The English rule on sci. fa. expires four days exclusive of the day in which given; (2 Tidd, 1040, last ed.,) it would seem, therefore, that according to our rule the calculation of time on a rule in sci. fa. to appear, varies from the English, and from that on a rule to plead. The words of the 4th rule of April, 1196, are a rule “of four days.” The English practice i» to enter judgment on the day of default in appearing.

For proceedings to revive a judgment, see Code of Procedure, sect, 316, et seq.