Mader v. Christie

KERRIGAN, J.

This is an appeal from an order denying defendant’s motion to set aside his default and the judgment entered" thereon.

In the month of June, 1911, the plaintiff, through the alleged negligence of the defendant, suffered an injury necessitating the amputation of his left leg. About one year later he commenced an action against the defendant to recover damages therefor. At the trial of that action it appeared that plaintiff two days after the injury entered into a contract with the defendant whereby he released the defendant from all liability on account of said injury in consideration of the sum of sixty dollars, to be paid at the rate of five dollars a week, which agreement the court held to be binding, and accordingly directed the jury to return a verdict in favor of the defendant, which was done. An appeal was taken from the resulting judgment, pending which the defendant effected a compromise, of the action with the plaintiff, without the knowledge of the plaintiff’s attorneys, by the terms of which the defendant agreed to pay the sum of fifty-five dollars (being a balance due under the first agreement), and also the additional sum of five hundred dollars, and to procure permanent employment for the plaintiff, the latter on his part, agreeing to dismiss the appeal. Said appeal was accordingly dismissed.

Defendant, as in the case of the first agreement, failed to perform the terms of this new one, whereupon the plaintiff commenced the present action, alleging in his complaint, in addition to the facts just recited, that the defendant had fraudulently induced him to make the second contract, and that by reason of the defendant’s failure to perform its terms plaintiff had sustained damages additional to those alleged in his complaint in his first suit. A demurrer was sustained to this complaint, whereupon plaintiff filed an amended complaint setting up further facts tending to meet the point of the demurrer to his first pleading, viz., that his cause of action was barred by the statute of limitations. This amended complaint was filed on Wednesday, November 6, 1918, and plaintiff claims that it was also served on that

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day. In the forenoon of the 18th of said month, no pleading thereto having been filed or served, and no order or stipulation extending time therefor having been made, plaintiff caused defendant’s default to be entered. Defendant, on the other hand, claims that the amended complaint was not served on him until the seventh day of November, so that the 17th falling on a Sunday, he had the whole of Monday, the 18th, to plead.