Tilney v. Gerner

Order reversed on the law, with ten dollars costs and disbursements, and motion denied, with ten dollars costs. Memorandum: In February, 1935, a money judgment was rendered against defendant on his default. He did not move to open the default and for leave to defend but made a motion to set aside the judgment and dismiss the complaint based upon affidavits asserting that in May, 1935, the law upon which the judgment against him was founded had been declared unconstitutional by the United States Supreme Court. The trial court granted the motion and the order appealed from adjudicated that the judgment be canceled of record. This and nothing more. We find no authority in law or in the practice of the court for such a determination on behalf of a defaulting defendant. All concur. (The order denies a motion to vacate judgment and dismiss complaint.) Present — Taylor, Edgcomb, Thompson, Crosby and Lewis, JJ.