Ryder v. Twiss

• Decision Date: 31 July 1841
• Citation: 4 Ill. 4,1841 WL 3226,3 Scam. 4
• Parties: Simeon Ryder, et al., plaintiffs in error,v.Moses N. Twiss, defendant in error.
• Court: Illinois Supreme Court

3 Scam. 4

4 Ill. 4

1841 WL 3226 (Ill.)

Simeon Ryder, et al., plaintiffs in error,

v.Moses N. Twiss, defendant in error.

Supreme Court of Illinois.

July Term, 1841.

Error to Madison.

The rules of practice of the Supreme Court do not require that the scire facias to hear errors should be served any specified number of days before the term.

Where a writ of error, issued on the 5th of May, returnable on the first Monday of June, was served on the defendant in error on the 27th of May, and judgment was taken, by default, on the 10th of June, for not joining in error: Held, that the service was in due time, there being more than ten days between the issuing of the scire facias and the first day of term, and that the plaintiffs in error, after assigning error, had a right to take a rule upon the defendant in error to join in error, and that he was bound to be in court, and comply with the rule, or to suffer judgment to pass against him by default.

Where a judgment has been taken irregularly by default, the party against whom it operates, should avail himself of the first seasonable moment after the irregularity is discovered, to correct it. After delaying two terms, without showing reason for such delay, he cannot disturb the judgment.

Although the 23d rule requires that the assignment of errors and joinder should be written on, or directly appended to, the record in the cause, and no assignment of errors had been filed in the cause, when a default, for not joining in error, was taken, yet the court will not disturb such default, after two terms have elapsed, when no notice of a motion to set aside the same has been given to the adverse party.

Semble, That upon motion to set aside a default or judgment, subsequent to the term at which it was taken, notice should be given to the adverse party.

BREEZE, Justice, delivered the opinion of the court:

This is a motion by James Shields, attorney for the defendant in error, to set aside a judgment rendered at the June term, 1840, for default of defendant's appearance, and to reinstate the cause on the docket, in the same condition in which it stood previous to the rendition of such judgment, for the following reasons assigned:

First. Because the writ of error in the cause, which issued on the fifth day of May, 1840, returnable on the first Monday of June, was served on the defendant in error on the twenty-seventh day of May, only five days before the first day of the said June term; and because judgment by default was taken on the tenth day of June, 1840; and

Second. Because judgment was taken for failing to join in error, whereas there was no assignment of error on file at the time, and the defendant in error not being required, by the rules of the court, to appear at said term, did not appear at that term.

It will be recollected that the rules of practice in this court do not require that the scire facias to hear errors, which is the only process served on a defendant in error (the writ of error remaining in the office), should be served any specified number of days before the term.¹

By the tenth rule, which governs this case, the service was in due time, there being more than ten days between the issuing of the scire facias, and the first day of term. The plaintiffs in error, then, had the right, after assigning errors, to take a rule upon the defendant to join in error, who was bound to be in court and...