Clarke v. Witram

Temple, C. This is an appeal from an order setting aside and quashing service of summons.

The record includes a bill of exceptions, which contains proof of the service of summons upon the defendant, and shows that default was entered upon the failure of defendant to appear and answer; also notice of motion to set aside and quash the services of summons, given two days after entry of the default, and on order granting the motion entered two weeks later. No judgment roll is contained in the record and no pleading. The character of the suit does not appear, and we do not know whether the relief sought was of such a nature that upon default judgment might have been entered by the clerk, without action on the part of the court or not. The record does not show that judgment has ever been entered.

Motion is made to dismiss the appeal on the ground that the order is not appealable.

Appellant contends that the order is a special order made after judgment, but, as we have seen, that nowhere appears. There is nothing in the nature of the order to indicate it; Ordinarily such motions precede the entry of judgment, and further, it is natural to suppose, if judgment had been entered, an order vacating it would have been included in the relief asked.

Appellant in his notice of appeal describes the order as made after judgment and insists upon this as showing that the order he has appealed from is such an order; but a party cannot make evidence for himself in that mode. If such fact existed it should have been stated in the bill of exceptions.

I think the motion should be granted.

Searls, 0., and Haynes, 0., concurred.

For the reasons given in the foregoing opinion, the motion to dismiss the appeal is granted.

McFarland, J., De Haven, J., Fitzgerald, J.