Rock v. Wallace

In this cause a decree was entered for plaintiffs, on the 27th of November, 1861, against the defendants, including Clark Durant, who, it is alleged, was not served with notice. .

At the succeeding term, Durant appeared in Court by counsel, and moved to correct the decree aforesaid by leaving out therefrom the name of Clark Durant, for the reason that he had never been served with notice. This motion was sustained on the 22d of May, 1862, and thereupon the plaintiffs moved that the said Durant, as he was *380then in Court, should file his answer to the petition by the morning of the 27th thereafter. Such a rule was granted, and Durant excepting, takes this, his appeal, therefrom. It does not appear from the record that any answer was filed agreeably'to the requirements of said rule, or that any action was taken by tbe Court for the failure. But tbe record does show, that on tbe 29th of May; two days thereafter, the defendant, Durant, asked and obtained an extension of sixty days within which to answer; that making default therein, a decree, pro confesso, was entered against bina.

In tbis condition of tbe record, if there was error in tbe first order ruling the defendant to answer, nevertheless it was an error without prejudice, for if we should reverse tbe ruling on the particular point of practice made, it could not and ought not to have tbe effect of disturbing the decree entered against tbe defendant for failing to comply witb another rule obtained upon bis own motion. The order below will therefore be

Affirmed.