Majority
p. 70Gustavus V. Churchill and another v. Mary Mallison and another.
Headnote
An order vacating a judgment entered by default, and letting the defendants in to answer upon their showing a defence and excusing their neglect, is not appeal-able.Such an order can be reviewed only upon obtaining the certificate required by rule of this court of March 22d, 1851, which is granted in all cases where the judge making the order deems the question of such importance and doubt as to render a review proper.
Appeal by plaintiffs from an order at special term, setting aside a judgment and permitting the defendants to defend. The defendants moved to dismiss the appeal.
Lowe & Daly, for the appellants.
Doolittle, Ward & Wilcoxson, for the respondents.
A judgment in this action was entered by default, upon the defendants’ failure to answer. Upon an affidavit excusing the neglect, and showing a defence, a motion was made on their behalf, at special term, to vacate and set aside the judgment, and permit them to defend. From the order granting this motion, the plaintiffs appeal to the general term.
In Mead v. Mead (2 E. D. Smith, 223,) it was held that an order of this nature rested in the discretion of the judge making it,
p. 71
and was not appealable under sec. 349 of the Code. See, also, Seely v. Chittenden, 10 Barb. S. C. 303 ; Sherman v. Felt, 2 Com. 186. It can only be reviewed upon obtaining the certificate required by the rule of this court of March 22,1851, and which is granted in all cases where the judge making the order deems the question of such importance and doubt as to render a review proper. The certificate not having been obtained the appeal is therefore dismissed.
Appeal dismissed, with costs.