Majority
p. 53Joshua Van Namee et al. vs. John Jones.
Headnote
A default for not pleading opened on terms, where plaintiff was regular, for the reason that there being an open running account between the parties, it would be better to let a jury pass upon it.Motion by defendant to set aside default for not pleading, and all subsequent proceedings on terms.—It appears from defendant’s papers that his excuse for not pleading to the declaration, after service upon him, was, that he was unacquainted with such business, and supposed a suit must be commenced by service of process by a sheriff. He swears that the suit is commenced on an open account which has been running some time between him and plaintiffs. Since suit was commenced, has had interviews with plaintiffs in relation to settlement; also swears to merits. Plaintiffs state the suit is brought to recover the balance due on a bill of lumber, the amount of which defendant has repeatedly promised to pay. Since suit commenced he had requested some of the amount deducted for certain items. The clerk of plaintiffs’ attorney explained to defendant the object of the declaration at the time of service; told him to give it to a lawyer, or he would have judgment against him in twenty days. Plaintiffs are regular.
Horace Dresser, Hefts Counsel. B. B. Phelps, Hefts Atty.
N. Hill, Jr., Plffs Counsel. L. C. Clark, Plffs Atty.
p. 54
Default opened, on the ground that there being an open running account and disputed items, it would he well to let a jury pass upon it after hearing the defence.
Decision.—Motion granted on payment of costs of default and subsequent proceedings, and seven dollars costs of opposing motion, judgment to stand as security.