Morris v. Marye , 1 Cal. Dist. Ct. 97 ( 1857 )

Norton, J.

delivered the verbal opinion of the Court denying the motion. He said that the motion, if based upon the ground that the default was entered prematurely, must be denied, as the Court had lost jurisdiction by the lapse of the term at which the decree was taken. He thought, that taking the default too soon would create irregularity in the judgment.

If the motion was based on the right of the defendant, upon whom personal service had not been obtained, to answer within six months, as provided by sec. 68 of Prac. Act, he held that the affidavit should show that the defendant had a meritorious defense, as the defendant tinder the section referred to could only be permitted to answer to the merits. He thought that the proper practice in all such cases was to accompany the application with an answer showing a meritorious defense.