Hole v. Page

Dunbar, J.

(dissenting).—I dissent. I think an affidavit of merits should have been filed. If there was a meritorious defense, it would have been easy to set it up. If, on the other hand, there was no defense to the action, it would he a useless thing to do to set aside the default, or vacate the judgment, whether the default was properly entered or not. They had notice that the default would he ashed for, and, if there was any reason why it should not have been granted, they should have appeared and presented them; and, if they were legal reasons, the presumption is that the default would not have been granted, hut, if it had been granted, an appeal would have been available. But in this case the defendants stayed away until the default was entered and judgment rendered and then, upon application to set it aside, cavalierly refused to even assert any defense to the action. I do not think the time of the court should he taken up in reopening judgment, unless it appears to the court that there is a •defense to the action, no matter whether the default was legally or illegally entered; especially where the defendant had notice that default would he prayed for, and where the court unquestionably had jurisdiction.