Majority
p. 646Ross and others against Hubble, and Jemima, his wife, administratrix of Paterson.
Headnote
Where it is necessary only to endorse an appearance on the writ, bail not being required, it is the duly of the clerk of the court to enter the appearance of record. If judgment be signed before it is so entered, it is good, and the court will order the appearance to be entered nunc pro tune.This was a motion to sot aside the default entered in the cause, and all subsequent proceedings, with costs.
■ The affidavits contained a variety of unimportant facts, but the only question worth noticing, which was relied on, was one of practice, whether it was regular to a writ, which was in trespass only, and returned[1] with the names of the defendants endorsed, to enter their appearance in the clerk’s office, after judgment was signed.
It was contended that as the court would order it to be done on application, it was in fact, doing no more than that which the court would sanction.
It is said that no appearance of the defendants, by special or common bail, or an entry of an appear
p. 647
anee was of record, when the default and judgment were returned. As the process in the cause did not require bail, the defendants endorsed their appearance on the copias. It was the business of the clerk, and not of the attorney, to have ^"entered their appearance. This [*513] may be done nunc pro tune. The loches of the clerk ought never to prejudice the attorney.[1] We, therefore, deny the motion with costs of opposing.
Motion denied, with costs.
[1] [1] On this point see also Hester v. Haynes, 6 Wend 547 .