Opinion
May, 1905.
Lewis Squires, for the appellant.
James A. Allen, for the respondent.
Appeal from an order denying a motion to set aside a judgment entered on an alleged default in pleading.
The action is brought upon a promissory note and on the last day to answer the attorney for the defendant served on the attorney for the plaintiff an order requiring her to file security for costs, which contained a provision extending defendant's time to answer twenty days after such security had been filed. On the day following the security was filed and a motion then made to vacate such order in so far as it extended the time to answer. On the 1st day of February, 1905, the return day of the motion, the defendant's attorney appeared at the call of the calendar and consented that plaintiff's motion be granted, whereupon the court granted the motion and directed that the order be settled on notice, and on the same day a proposed order, with notice of settlement for the third of February, was served on defendant's attorney. On the second of February an answer was served, which put in issue material allegations of the complaint. On the third of February the proposed order was settled and entered in the office of the clerk and immediately thereafter, and within twenty-four hours after its receipt, the answer was returned and judgment entered as though defendant had made default in pleading, and the appeal is from an order denying a motion to vacate it.
I am of the opinion that the motion should have been granted. The defendant had a right to serve an answer at the time the one in question was served. This was given to him by the order extending time to answer. The fact that the court had announced on the day previous that the motion to vacate that order was granted did not, in fact, accomplish that result. The order extending the time to answer remained in full force and effect until the order vacating it had been actually signed and entered and this was not until the day after the answer had been served. The settlement of the order was the actual disposition made of the motion and that was on the third of February. The answer was served on the second of February and at a time when defendant had a right to serve it. It put in issue material allegations of the complaint and until such issues had been disposed of judgment could not legally be entered.
The order appealed from, therefore, must be reversed, with ten dollars costs and disbursements, and the motion granted, with ten dollars costs.
VAN BRUNT, P.J., O'BRIEN, INGRAHAM and HATCH, JJ., concurred.
Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs.