Clark v. Lyon

Headnote

A defendant failing to serve his answer within the time allowed for that purpose, upon excusing his default and showing a good defence, is usually permitted to interpose it upon terms.

Where the answer was prepared and verified, and placed with the clerk of the defendant’s attorney for service in season, and, the defendant’s attorney having left town, the answer was not served through the forgetfulness of his clerk,

Held, a sufficient excuse to warrant the opening of the default, the judgment and execution being allowed to stand as security.

Appeal from an order denying a motion to open a default. This was an action upon a promissory note. The defence was a release under the two-thirds Act. An answer setting up this release was drawn and verified in season for service, and was left by the defendant’s attorney with his clerk to serve, he himself being called from town. The clerk swore that he called twice at the office of the plaintiff’s attorney before 4 o’clock in the afternoon to serve the answer, but found the office closed; and that he thereafter forgot about the case, until reminded of it by the defendant’s attorney upon his return to the city, and after the time for answering had expired. The plaintiff’s attorney’s clerk swore that the office of'the plaintiff’s attorney was uniformly kept open until 5 o’clock P. M. The motion to open the default was denied, and, the judge who heard the motion having given the necessary certificate, the defendant appealed.