Majority
p. 166Rosevelt vs. Giles.
Headnote
The defendant’s default for omitting to appear and plead in proceeding^ under the statute to compel the determination of claims to real ptoperty, (2 It. S. 312 et seq.,) cannot be entered of course, but the defendant must niové the court for it, showing by affidavit or otherwise upon what proof the rule to appear and plead was entered.Where the default was entered without applying to the court, and the defendant, after several special terms had gone by, moved to set it aside, without offering any excuse for the delay, the motion was nevertheless granted, but no costs were allowed.
Rosevelt served Giles with a notice tinder the statute relating to “ proceedings to eompél the determination of claims to real property” &c., (2 R. S. 312,) and on the 18th of Hay last a rule was entered requiring the defendant to appear and plead within forty days. On the 28th of June following, the plaintiff entered the defendant’s default in the common rule book, without moving the court, and on the same day perfected a judgment.
J. N. Platt, for the defendant,
moved to set aside the default and judgment for irregularity, insisting that the default could not be entered as of course. )
N. JSill, Jr., for the plaintiff,
said the default was regular. But if the court should think otherwise, the motion comes too late; there being no excuse in the papers for not moving sooner.
By the Court,
The statute under which this proceeding was had plainly distinguishes between such orders as may be entered in the common rule book, and such as tnust he obtained on special motion. The rule to appear and plead is “ a rule of coürse(2 R. S. 313, § 4;) but if the party does not appear and plead in proper time, “ the court shall direct his default to be entered.” (§6.) The legislature evidently intended that the court should hear of the matter before the party was forever barred of his claim, The plaintiff should have moved the court
p. 167
for the default, showing by affidavit or otherwise when and upon what proof the rule to appear and plead was entered.[1] We do not think this a case where the neglect to move at the first opportunity should defeat the motion altogether. But we will not give costs.
Motion granted, without costs.
(a) (a) This motion may be made either at a general or special term. (See Rules of Sup. Ct. May, 1845, No. 58.)