Thompson v. Alford

Order Refusing to Set Aside Default and Fix Time to Plead—Appealable Order—Default not Appealable.—An order made after judgment refusing, upon motion of the plaintiff, to set aside the default of a defendant, and to fix a time in which the defendant should plead, is an appealable order.

Id.—Previous Vacation of Judgment not Res Adjudicata.—The dismissal of the appeal of the plaintiff from an order vacating the judgment on motion of the defendant, though it operates as an affirmance of the order, is not res adjudicata as to an order refusing the motion of plaintiff .to set aside the default of the defendant and to fix a time for the defendant to plead, and does not preclude the plaintiff from appealing therefrom.

Id.—Distinct Motions and Records—Distinct Relief.—A motion of the defendant to vacate the judgment, and a motion of the plaintiff to set aside the default of the defendant, and to fix a time for the defendant to plead, are distinct from each other, depend upon distinct records, and seek distinct relief. •They do not presumptively involve the determination of the same facts; and the final decision of the first motion by vacation of the judgment does not involve the subject matter of the latter motion.

Id.—Right of Plaintiff to Set Aside Default.—The plaintiff is not precluded from moving to set aside the default of the defendant and to fix a time for pleading, by reason of the fact that the default was entered at his instance.

Id.—Perfecting Appeal—Service of Notice upon Defendant’s Attorney—Appearance.—The notice of appeal from the order refusing to set aside the default, etc., is properly served upon the defendant’s attorney, in perfecting the appeal, if his appearance in the action was general, and not merely special.

Id.—Special and General Appearance—Motion to Vacate Judgment —Excusable Neglect—General Appearance.—Where defendant’s attorney assumed to appear specially for the purpose of moving to vacate the judgment, and in the supreme court only for the purpose of moving to dismiss an appeal therefrom, but the motion papers, besides formally stating as a ground the want of service of summons upon the defendant, really presented, as a ground for relief, the excusable neglect of the defendant in not properly examining a copy of the summons and complaint served upon the defendant, the appearance of the attorney for defendant is general, and in the absence of a substitution of attorneys a notice of appeal may be served upon such attorney.