Opinion
Appeal from the Seventh District.
Suit for money had and received. Defendant demurred. The demurrer was overruled, and forty days from June 29th, 1859, were given for answer. August 10th, 1859, plaintiff applied, in writing, to the Clerk, for default and judgment, and previously, on the same day, defendant filed an answer. At the October Term of the Court, the cause being called in its order, the Court ordered defendant's default and judgment thereon for plaintiff to be entered, according to the application made August 10th. Subsequently, the rule to show cause was made, as stated in the opinion.
The motion to set aside the judgment was based upon affidavits of merits, and of inadvertency and mistake of counsel in not filing the answer in time.
COUNSEL
Geo. L. Wratten, for Appellant.
John Currey, of Counsel.
H. Toler Booraem, for Respondent.
JUDGES: Cope, J. delivered the opinion of the Court. Baldwin, J. concurring.
OPINION
COPE, Judge
This is an appeal from an order setting aside a judgment. An order had been previously made by the Court, requiring the plaintiff to appear at a certain time and show cause why the judgment should not be set aside. It does not appeal that a copy of this order was served either upon the plaintiff or his attorney, or that any notice was given of the time at which the matter was to be heard. The plaintiff did not appear, and the judgment was set aside. We think that under these circumstances the order was erroneous, and should be reversed. The cause is remanded for such further proceedings as the parties shall be advised to take.
Ordered accordingly.