Boyd & Phelps v. Seely — 2 Wend. 242

Majority

p. 242

Boyd and Phelps vs. Seely.

Headnote

A rule for interlocutoryjudgment canuntiUourdiya in term after default ; nor can notice of assessment be ^default! of" A rule for interlocutnrv

The default in this case was entered on the 15th November last, and on the same day damages were assessed. A motion was made to set aside the rule for interlocutory judgment, and all subsequent proceedings, the latter rule being enter-U ■, . -I , V n ed on the same day with the default,

J- A- Collier, for defendant.

Cr. I. Cbosvenor, for plaintiff.

It was irregular to enter a rule for interlocutory judgment until four days in term had intervened after the entry of the default. (8th Rule of April term, 1796.) Besides, there could not have been notice of assessment in this ease, which, and notice of inquiry, cannot be given until after default, though it may be given previous to the entry of rule for interlocutory judgment. (2 Caines, 109. 12 Johns. R. 151.)

Motion granted.