Pico v. Carillo
Before: Murray
Synopsis
An order of Court, setting aside a default and judgment entered during vacation, is regular and correct, where there has been no service of summons upon the defendants. This proceeding is expressly authorized by the sixty-eighth section of the Practice Act, and it is not necessary to file a bill in chancery to vacate the judgment.
Murray, C. J., delivered the opinion of the Court—Terry, J., concurring.
The order of the Court below, setting aside a default, and judgment entered during vacation, was regular and correct, inasmuch as there had been no service of summons upon the defendants.
This proceeding is expressly warranted by the sixty-eighth Section of the Practice Act, and, in a case where there has been no service whatever, it is not necessary to file a bill in chancery to vacate the judgment; but it may be set aside or re-opened, on motion, within the time allowed by law.
Although the “ want of proper legal service ” was the ground of the defendants’ motion in the Court below, the record shows that there was, in fact, no service whatever.
•Judgment affirmed.
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