Opinion
Submitted May 27, 1938 —
Decided September 16, 1938.
In support of a rule to show cause why a new trial should not be granted, affidavits in support of the rule must be taken on notice and in the manner established by the rules and practice of the District Court, and ex parte affidavits are wholly insufficient for such purpose.
On appeal from the Supreme Court, in which the following per curiam was filed:
"The action in the court below was by the insurance company to recover unpaid premiums on a policy of insurance. The defendant not appearing on the return date, affidavit in support of the claim was filed and judgment by default taken. Later a rule to show cause why a new trial should not be granted was allowed, argued and discharged.
"From the judgment taken the defendant appeals setting forth among numerous specifications of causes for reversal, that there was error in the entering of the judgment, and abuse of discretion in the refusal to open the judgment.
"We find no error in the proceedings below. The judgment was regularly taken in accordance with paragraphs 146 and 151 of the District Court act upon the failure of the defendant to give heed to the process served upon it. If we examine the record we find nothing but the affidavits of the attorneys for the defendant in support of the rule for new trial, and ex parte affidavits are wholly insufficient for such purpose.
"We may add that examination of the policy, unproved, but which nevertheless was incorporated in the state of the case, leads us to the conclusion that the decision of the court was right on the merits.
"The judgment is affirmed, with costs."
For the appellant, Edward Farry, Jr. ( Theodore D. Parsons and Theodore J. Labrecque, of counsel).
For the respondent, Ira J. Katchen.
The judgment under review herein should be affirmed, for the reasons expressed in the opinion delivered per curiam in the Supreme Court.
For affirmance — THE CHANCELLOR, TRENCHARD, BODINE, PORTER, HETFIELD, DEAR, WELLS, WOLFSKEIL, RAFFERTY, JJ. 9.
For reversal — THE CHIEF JUSTICE, PARKER, HEHER. PERSKIE, WALKER, JJ. 5.