Williams v. Cox

Headnote

In a proceeding under the act to compel the determination of claims to real estate, notice of the rule to appear and plead, entered by the party instituting the proceeding, need not be given.

Should such party obtain a judgment as well as a default before the appear, anee of his adversary, whether the court could grant relief by opening the judgment? Quere. ,

_ Motion to open a default. On the 7th July, 1830, a notice was served by Cox on Williams, under the act to compel the determination of claims to real property, 2 R. L. 312, § 1, et seq. requiring him to assert his claim in the manner provided by law, a rule to appear and plead was entered, and on the 22d October his default was duly entered. About the middle of December, Williams was informed by Cox that such proceedings had been had that he was barred of his ■claim. Williams now on an affidavit of title, and that he had rested easy under the advice of counsel that no further proceedings could be had against him until served with a notice of the rule to plead, applied to open the default, and that he have leave to plead. The application was resisted on the grounds that Cox had lost the benefit of the evidence of two aged witnesses, one of whom had died, and the other had become disqualified from giving testimony by reason of a paralytic shock, both of which events bad happened in the month of December last, and that a circuit court had been held in the county" where the land was situated in November last, where he had intended to urge the trial, of the title to the land; and he insisted that by this statute a new limitation was created, requiring a prosecution for the recovery of land within three instead of twenty years, where the defendant was in actual possession, and that after notice to assert his claim, if the party did not plead within forty days the time limited by the statute, he was forever barred.