Majority
p. 386Hochstrasser vs. Wolgrove & Wolgrove. moved to set aside the default for irregularity, and cited Sawyer v. Wood, ( 18 Wend.. 631 ;) Smith v. Bush, (2 id. 279.) The return day of the certiorari has not yet arrived, and, according to the cases cited, the court has not got possession of the cause so as to be able to make any order concerning it. See also The People v. Supervisors of Queens, ( 1 Hill, 195 .)
Headnote
Where, before plea, a cause is removed from the common pleas intou this court by certiorari, it is irregular for the plaintiff to enter the defendant’s default for not pleading before the return day of the writ, though after its actual return.A default thus prematurely entered will be set aside on motion, even before the return day. “■
A certiorari was issued before plea to remove the cause from the Albany common pleas into this court. The plaintiff caused the writ to be returned and filed in this court, and, before the return day, entered the defendant’s default for not pleading.
A. D. Robinson, for the defendants,
C. M. Jenkins, for the plaintiff.
By the Court,
The first two cases which have been mentioned at the bar decide, that the plaintiff was irregular in taking a step against the defendants before the return day of the writ; and they decide nothing more. As to our power to grant relief—when the writ is actually returned and filed, although, the return day has not arrived, we are sufficiently possessed of the cause to regulate the proceedings of the parties. And besides, the motion is to set aside a default entered in this court, and although nothing else were before us, this irregular entry might be vacated. In the case cited by Mr. Jenkins, we were asked to
p. 387
quash certain proceedings of the supervisors before a certiorari had even been awarded to bring the matter before us.
Motion granted.