Lewis v. Rigney
Before: Norton
Synopsis
Is an action of ejectment against two defendants, one was served with summons and made default, and without any service being had upon the other, a judgment was entered against both for possession of the premises and costs. On application of the defendant not served, an order was made at a subsequent term of the Court, setting aside the entire judgment as to both defendants, with leave to the defendant not served to answer: Held, that this order was proper.
Tke-effect of such an order is not to set aside the default of the defendant who had been served, or to permit his co-defendant to defend for both. A new judgment may at once be entered by the plaintiff against the defaulting defendant.
The sixty-eighth section of the Practice Act applies not only to cases where a judgment has been taken regularly without personal service, as upon publication of summons, but also to cases of judgments entered erroneously without any service of summons or appearance of defendant.
Where, pending a motion by a defendant who had been served with process to set aside a judgment erroneously entered at a previous term against him and a co-defendant who had made default, the plaintiff applied to the Court to correct the judgment by striking out the name of the moving defendant, on the ground that it had been inserted by a mistake of the Clerk : Held, that, admitting the mistake, it was within the discretion of the Court to deny so tardy an application.
Opinion — Norton
Norton, J. delivered the opinion of the Court Court Field, C. J. and Cope, J. concurring.
This is an action of ejectment, in which the summons was served on the defendant Quigley, but not on the defendant Rigney—Quigley having suffered a default, judgment was entered against both defendants. Rigney then moved the Court to set aside the judgment, which motion was granted. The plaintiff appeals, and insists that Rigney could only ask to have the judgment set aside as to him. Although it may be that Rigney might have the judgment set aside as to him, yet we think he may have the only judgment in the case set aside if it has been taken against him without authority. There is no judgment against him alone; it is one judgment against the two defendants for the recovery of the premises and for damages, and to set aside the judgment as to him would in effect be setting aside the whole of that judgment and entering a new judgment against Quigley alone. As it now stands, the plaintiff has only to enter a new judgment against the defendant who has made default. Whichever the form the result is the same.
The parties seem to consider that the leave given Rigney to answer the complaint authorizes him to defend for both defendants. This is not so. The default of Quigley has not been set aside, and if Rigney wishes to defend for Quigley as landlord, he must make an application for such leave. We do not intend to signify any opinion as to his rights in this respect, but only to remove the erroneous impression which appears to have occasioned this appeal.
Judgment affirmed.
Opinion — Norton
On petition for rehearing Norton, J. delivered the following opinion Field, C. J. and Cope, J. concurring.
A rehearing is asked in this case on the supposition that the Court overlooked the fact that the term at which the judgment was entered had elapsed before the motion to set it aside was made, and also the fact that the entry of the judgment against both of the defendants was by a mistake of the Clerk of the District Court. [273]
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