Majority
p. 172Henry H. Mather vs. Charles Wardell.
Headnote
A default taken at a special term will not be opened at the same term, where it appears the opposing counsel did not attend the term at all, until late in the session, and then come in and found a default had been taken against him, and moved to open it on the ground that he and the counsel moving had an understanding not to attend until about the close of the term, he must attend the term and watch his motions, otherwise he must give notice and move at the next term to open the defaults.v3 motion for judgment as in case of non-suit in this cause was made and granted by default on the 5th of June.—On the 7th of June plaintiff’s counsel moved to open the default, on the ground that there was an understanding with one of defendants’s counsel with plaintiff’s counsel that he would not probably attend the term until the 7th. The partner of defendant’s counsel with whom no arrangement was made, attended the term on the 5th, and took his motion by default.
The default can not be opened at this term ; if plaintiff’s counsel had been in attendance upon the court, it might be proper to open it; where counsel are in attendance watching their motions, and by mistake a default is taken against them, it is usual to open the default. Here the defendant’s counsel has made his motion and gone home, and his opponent does not appear at court or any other counsel for him, until nearly the close of the term. Notice must be given defendant’s attorney to open the motion at the next special term.