Smith v. Roberts — 1 How. Pr. 40

Majority

p. 40

Walter Smith vs. David Roberts, et al., Commissioners, &c.

Headnote

Defendant on showing an excuse for not pleading, and plaintiff not showing when the declaration was served, default was set aside, and defendant allowed to plead.

Motion by defendant to set aside default and subsequent proceedings.— The defendants’ grounds of defence are set out at length; at the time of service of the declaration on defendant, Roberts (who was the only one served), he was confined to his house with inflammation of the eyes, and

p. 41

could not read, and was so confined and unable to read for more than twenty days subsequent to the service of the declaration. The [43 plaintiff’s papers do not show the time of the service of the declaration.

E. H. Rosekrans, Defts Counsel. Rosekrans & Farlin, Defts Attys.

A. T. Wilson, Plffs Counsel. A. T. Wilson, Plffs Atty.

The plaintiff’s opposing papers not showing the time of the service of the declaration, motion must be granted.

Decision.—Motion granted with costs. Defendants to have ten days to plead.