Majority
p. 106Bank of Rochester vs. Boulton and others.
Headnote
In an action against three defendants, t\yo of whom plead and the third suf. fers a default, the plaintiff may notice his canse for trial before entering interlocutory judgment against the defendant making default, and may take an inquest at the circuit, provided that before doing so, interlocutory judgment is entered against such defendant.Motion (o set aside inquest. The action was commenced 2Slh August. There were three defendants, two of whom appeared and put in a plea; the third suffered a default. About, the 20th September, the plaintiffs gave notice of trial to the defendants who bad pleaded, for the Rivingston circuit to be held on the fourlh Monday (25il>) of October last, and on the second day of the circuit, took an inquest ; which was now moved to be set aside as irregularly taken. It was shewn, on the part of the plaintiffs, that, interlocutory judgment was entered against. t.he defendant who suffered a default previous to the taking of the inquest.
M. T. Reynolds, for defendants,
J. Harris, for plaintiffs,
By the Court,
The proceedings of the plaintiffs have been regular. Had the inquest been taken previous to entering interlocutory judgment against the defendant who did not appear, it would have been otherwise. It
p. 107
has always been held (he correct practice to give notice of inquiry on assessment after default, though previous to interlocut.ory judgment; 2 Caines, 109. In the case of Cuddeback v. Fanley, 2 Wendell, 624, the inquest was set aside because interlocutory judgment had not been entered against the defendant who had not appeared, previous to the taking of the inquest, and not because such judgment xvas not entered previous to the notice of trial, as is very manifest from I lie report of that case, although in the marginal note iris incorrectly staled otherwise. The motion is therefore denied.