Phelps v. Stafford

THE attorney for the plaintiff had entered the default, the last July vacation, before the rule for pleading had expired, and the default being entered, he had refused to accept a plea from the attorney for the defendant;' who, having shortly thereafter discovered that the default had been prematurely entered, gave a notice of a motion, as of the ensuing October term, to set it aside, and, no counsel appearing to oppose the motion on the part of the plaintiff, it was granted of course.

*73The attorney for the plaintiff, when the notice was r . served, resided in Albany, but happening at the time to be out of town, and his office shut up, and he having, not long before, expressed an intention that he probably should remove into the country, the attorney for the defendant had supposed he had removed, and not finding he had appointed an agent, the notice had been stuck up in the clerk’s office. The judgment had since been entered, and execution taken out against the defendant, and process issued against the bail.

Ordered, That the whole of the proceedings, from entering the default inclusive, be set aside, and the costs to abide the event of the suit.