M'Kell v. Neil , 1 Morris 271 ( 1844 )

Per Curiam,

Mason, Chief Justice.

The defendants in error brought suit against M’Kell, returnable to the October term, 1841. That term appears to have commenced on the twenty-first day of October, and a judgment by default was rendered against the defendant below, on the twentieth day of the same month. This was clearly erroneous, for no default could legally have been rendered against the defendant until the second day of the term. There is probably some clerical error in this case, but we have no means of correcting that mistake and must, decide upon the case as it appears in the transcript.

The defendant in error insists that there was no assignment of errors filed by- the third day of the term, and that it is too late now to raise any points in the case. That circumstance, if available at all, should have been made the basis of a motion previous to the argument.

The judgment below will therefore be set aside and the case remanded to the court below for further proceedings thereon.

Note.—At the next term of the court it was made to appear that the error which caused the above reversal, was clerical only. Thereupon the case was reinstated and the judgment affirmed.