Wagreich v. La Vien

Per Curiam.

The facts in this ease are not disputed. By an order to show cause returnable on the 14th day of April, 1916, one of the defendants herein moved for an order asking that the judgment entered against her by default be vacated and set aside and also why she should not be allowed to interpose a defense. In the affidavit accompanying the moving papers she recited that she had never been served with process and had no knowledge or information of the existence of a judgment against her until the marshal called upon her with an execution. The .facts thus testified to were not disputed. The plaintiff raised the preliminary objection that no proposed answer had been served, and the court denied the motion solely, as is ' stated in a stipulation contained in the record, upon .that ground. The respondents claim upon this appeal that the motion was to open a default, under subdivision 2 of section 129, Municipal Court Code, and not a motion to vacate a judgment for non-service of process under subdivision 1 of said section and that was evidently the view taken by the lower court.

We see no reason why the defendant was prohibited from asking for any relief the facts might show that she was entitled to, and the first question to be determined by the court was raised by the allegations in the moving papers to the effect that the court had not obtained jurisdiction of the defendant by service of process. This question was one of fact to be determined by the court below: ‘1 Upon affidavit or otherwise.” Mun. Co. Code, § 129. The vacation of the judgment was asked for as a matter of right and if non-service was disputed the plaintiff should have met the issue by proof of service. This was not even attempted and the testimony of the defendant stands uncontradicted.

Present: Gut, Bijur and Philbiu, JJ.

Order reversed with ten dollars costs and judgment vacated.