McCluer v. Crotty

CANTY, J.

The statute prescribing the practice in the municipal court of Stillwater provides:

“If the defendant fail to appear at the opening of the court on the day at which the summons is returnable, he shall be defaulted. * * * The court may for good cause in its discretion, and on such terms as it may deem equitable, open any default within six months after the same is made.” Sp. Laws 1887, c. 6, § 49.

This action was brought in that court. The summons, which was duly served, was made returnable March 17,1896. Defendant failed to appear, and was defaulted. Judgment was entered for plaintiff on such default April 26, 1896. On July 22,1897, an order to show cause why said judgment should not be set aside and defendant given leave to answer was procured by defendant, and after a hearing thereon the court made an order setting aside the judgment and allowing defendant to answer. From this order plaintiff appeals.

One of the grounds urged for reversal is that the time for opening the default had expired long before any move was made to open the same. In our opinion the point is well taken. No attempt was made to remove the default until considerably over a year after the entry of judgment thereon, while the statute allows at most but six months after judgment in which to proceed to open such a default,

The order appealed from is reversed.