American Aquol & Pyrodene Paint Co. v. Smith

No rights of third parties having intervened, we think that the rule that the appearance of an attorney must be held binding does not necessarily apply to this casé. Upon the facts, then, it appearing that the defendant never was served with the summons, and that he states that he was not a partner, and therefore not liable to the plaintiff, a judgment against him would be mani*724festly unjust. It appeared, moreover, that the motion was made as soon as the knowledge of the existence of the judgment came to the defendant, and we do not see how, under these circumstances, loches can be imputed to him.

The order appealed from should be reversed, with $10 costs and disbursements, and the motion granted, with $10 costs, to abide the event of the action.