Varnum v. Wheeler

Headnote

Default for not rejoining to plaintiff’s replications, opened on terms, and allowing amended special pleas served, to stand, where there was a misunderstanding in relation to a stipulation between the attorneys.

Motion to set aside the d fault of defendant Wheeler, for not rejoining to plaintiff’s replications, and directing the plaintiff’s attorney to receive the special pleas, filed and served, or allowing defendant’s attorney to amend his special pleas.—Defendant’s facts: that a stipulation was signed by plaintiff’s attorney (being drawn by defendant’s attorney), after the special pleas had been served, and after replications by plaintiff’s attorney to said pleas; giving the defendant’s attorney a limited time to rejoin to said replications, or to amend his special pleas: that defendant’s attorney took the same stipulation, when the time had nearly elapsed, to plaintiff’s attorney, for an extension one day longer; that plaintiff’s attorney signed it for the further time, but struck out the words “ or to amend his special pleas,” which was interlined in the stipulation, saying they were not in it when he first signed it. Defendant’s attorney shows by his affidavit positively, that the words so stricken out and interlined were in the stipulation when plaintiff’s attorney first signed the same, and that the aménded pleas were served in time. Plaintiff’s facts: plaintiff’s attorney signed the stipulation the first time, after hastily looking it over, but did not see or know of any such words being in it, giving the defendant’s attorney leave to amend his special pleas, otherwise he should have refused to sign it. After the time for rejoining to the replication, he entered his default, and noticed the cause for trial on the general issue.