Wilder v. Lyman

Circuit Court of the 45th Circuit of Michigan

Wilder v. Lyman

2 Mich. N.P. 184

CourtCircuit Court of the 45th Circuit of Michigan

DecidedJune 15, 1871

StatusPublished

This text of 2 Mich. N.P. 184 (Wilder v. Lyman) is published on Counsel Stack Legal Research, covering Circuit Court of the 45th Circuit of Michigan primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Wilder v. Lyman, 2 Mich. N.P. 184 (Mich. Super. Ct. 1871).

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Opinion

By the Court,

Upson, J.

The defendant claims to have the order pro con/esso set aside as to himself, on the alleged ground that it was irregularly entered, for the reason that he had actually appeared and served a copy of his answer on complainant’s solicitor before the time for putting in his answer had expired.

Not only is this denied by the complainant-, but it also appears from the defendants own showing that at the time of the alleged service of copy of his answer the complainant’s solicitor declined to receive it, insisting that it was too late, and that at the time no answer had ever been filed in the cause, and none was ever attempted to be filed therein by the defendant, until several weeks after this) when the Register declined to receive it, the order pro con/esso having been entered prior to the alleged service of copy of the bill. — - The defendant- does not come with an affidavit of meritorious ground of defence and excuse for his neglect in not answering in time, but claims it as a matter of right to have the order pro confesso set aside for irregularity in the entering of it, alleging that he has made no default.

He has, however, failed in his showing to make out such a case, Waiving the question of time in the first instance, it then appears [186]*186that the attempted service was too defective to avail the defendant anything in this motion. The service of an answer is nof¡ perfect until the original is actually delivered to the proper officer to be filed, and where a pleading is served upon the adverse party or his solicitor, without having been filed, such service is irregular — although if filed on the same day, it has been held sufficient, unless some proceeding had been taken in the meantime to render such subsequent filing improper. 9 Paige, 252; 1 Barb. Ch. R., 496.

The motion must be denied with costs, but without prejudice to the right of defendant to make a new application on a proper showing, as he may be advised.

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By the Court,

Upson, J.

The defendant claims to have the order pro con/esso set aside as to himself, on the alleged ground that it was irregularly entered, for the reason that he had actually appeared and served a copy of his answer on complainant’s solicitor before the time for putting in his answer had expired.

Not only is this denied by the complainant-, but it also appears from the defendants own showing that at the time of the alleged service of copy of his answer the complainant’s solicitor declined to receive it, insisting that it was too late, and that at the time no answer had ever been filed in the cause, and none was ever attempted to be filed therein by the defendant, until several weeks after this) when the Register declined to receive it, the order pro con/esso having been entered prior to the alleged service of copy of the bill. — - The defendant- does not come with an affidavit of meritorious ground of defence and excuse for his neglect in not answering in time, but claims it as a matter of right to have the order pro confesso set aside for irregularity in the entering of it, alleging that he has made no default.

He has, however, failed in his showing to make out such a case, Waiving the question of time in the first instance, it then appears [186]*186that the attempted service was too defective to avail the defendant anything in this motion. The service of an answer is nof¡ perfect until the original is actually delivered to the proper officer to be filed, and where a pleading is served upon the adverse party or his solicitor, without having been filed, such service is irregular — although if filed on the same day, it has been held sufficient, unless some proceeding had been taken in the meantime to render such subsequent filing improper. 9 Paige, 252; 1 Barb. Ch. R., 496.

The motion must be denied with costs, but without prejudice to the right of defendant to make a new application on a proper showing, as he may be advised.

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Bluebook (online)

2 Mich. N.P. 184, Counsel Stack Legal Research, https://law.counselstack.com/opinion/wilder-v-lyman-micirct45-1871.

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