King v. Stewart

I. It is first urged that “the court erred in granting a default and rendering judgment against defendant before the afternoon of the second day of said term of court. ”

Section 180 of the Code provides that judges of the District and Circuit Courts may provide by general rule “that the time of filing pleadings or motions shall be other than provided by this Code.”

It appears from the argument of appellant’s counsel that in the order fixing the times of holding the courts in the district, it was directed, in all actions in both courts, the defendants were required to move, demur, or answer before noon of the first day of the term. It also appears from the additional abstract that this order was entered of record in the Circuit Court in March, 1875, said court then being in session.

It is objected that this is no such general rule as is contemplated by the section of the Code above cited, because it was never adopted and published as there required.

It is a sufficient answer to this objection to say that the record before us does not show that the question as to the validity of this rule or order was presented to the court below. ,It cannot, therefore, be urged here.

*3361. openfigIaf-: ofUmerite.davit *335II. The affidavit presented with the motion to open the *336default, we think, sufficiently excused the failure of the defendant to appear and defend at the-time named in the notice. But this is not all that is required. It must also be an affidavit of merits. Code, § 2871. The only statement of merits is in these words: “Defendant has. a good and substantial defense to this cause upon the merits, as deponent verily believes, from an examination of the records, and facts of this case. ” This is but the statement of an opinion by affidavit. It should be a statement of facts, that the court may determine therefrom the question of merits.

2__._. answer. III. The affidavit sets forth that the answer of defendant was prepared and ready to be filed if the default should be opened, and the answer was tendered to the court, to be filed instanter.

It is urged that the court erred in not permitting the-defendant to file his answer.

Defendant was not entitled to answer until it was adjudged that it was his right to have the default set aside. Then, as. a condition, he must plead issuably and forthwith. Code, § 2871. It is not shown what the answer contained. Error must affirmatively appear. We cannot presume that the court abused its discretion in refusing to set aside the default..

Affirmed.