Colegate v. Marsh

Headnote

An affidavit of merits for the motion must be served and produced on a motion by defendant to set aside default: the original affidavit of merits accompanying defendant’s plea will not answer. (See ls< HowarWs Practice Reports, 166.)

Motion by defendant to set aside default and subsequent proceedings.

'"The defendant’s plea and affidavit of merits annexed were served on the same day that his default had been entered by plaintiffs’ attorney; but after the default had been actually entered, plaintiffs’ attorney refused to accept the service, and returned them to defendant’s attorney, stating that defendant’s default had been entered. Defendant’s papers for this motion contained a copy of the plea and affidavit of merits incorporated in an affidavit of defendant’s attorney, and also the original plea and affidavit of merits served, annexed, but did not contain any affidavit of merits

for the motion. Plaintiffs' counsel cited 1 Howard’s Practice Reports, 166.