Keenan v. Quigg

Opinion by

Porter, J.,

The record in this case discloses an anomalous method of procedure. The summons was returned served on the first Monday of August, 1894. On December 5, 1894, a plea was filed to a statement and rule to plead served on the defendants, but which statement and rule seem not to have been filed of record until January 30, 1895. On February 1, 1895, an affidavit of service of a copy of statement on November 24,1894, was filed. On March 13, 1895, á judgment was entered for want of an affidavit of defense, notwithstanding the fact that the cause would seem to have been at issue on the plea. On April 18, 1895, a rule appears to have been entered to strike off the judgment, but was neither proceeded with nor disposed of. Nearly eighteen months thereafter, on October 14, 1896, a writ of fieri facias was issued, and subsequently, on November 13, 1896, a venditioni exponas. On November 19, 1896, a second rule was entered to strike the judgment from tbe record, proceedings to stay, sur petition of one of tbe defendants. On January 16, 1897, the rule was discharged, and on January 25, 1897, an appeal was taken to this court from that order.

We do not find it necessary in this case to determine whether a rule to plead is, since the Procedure Act of 1887, a waiver of the right to an affidavit of defense.

The defendants took no appeal from the original judgment, and failed to proceed with the rule taken on April 18, 1895, to strike off the judgment. This was such laches on their part as to prevent their successful appeal to the court for relief. We are the more reluctant to disturb the action of the court below, in view of the fact that nowhere on the record have the defendants attempted to set up a substantial defense on the merits of the cause.

Judgment affirmed.