Walsh v. Brevoort

Per Curiam.

Motion to set aside default, and permit defendants to plead.

In this cause, before the time had expired for defendants to plead, they obtained from the court ex parte 10 days5, further time, but neglected to serve notice of such extension upon plaintiff’s attorneys, and the plaintiff’s attorneys entered their default for want of a plea. Within the 10 days, the defendants filed and served a demurrer, which, on application to us, we directed the court to strike from the files. The case then stood on default.

The defendants, instead of complying with the rules of court, ignored them, and moved the court to set aside the-default, and for leave to plead or demur.' The court denied the motion on the ground that defendants had not complied! with the rules, by filing an affidavit of merits, pleading issuably, and tendering the costs of the default.

A mandamus is asked to compel the court to set aside-the order denying defendants’ motion, and to grant the motion to set aside the default with leave to defendants to» plead or demur.

We deny the motion for mandamus, with costs, but without prejudice to the defendants’ proceeding under the rules of practice to set aside the default in 10 days. We think that, under the circumstances, the delay may be considered as excused.