Arlington Manufacturing Co. v. Mears

TAFT, J. In each of these causes, at the December term of the county court, the defendant was defaulted and judgment entered upon the default. Afterwards,- during the term, the entry of default and judgment was stricken off and the cause continued for trial. The legal power of the court to so strike off the entry of default and judgment is challenged. The plaintiff concedes that such power existed prior to the passage of R. L. s. 1,422 which reads: “When a judgment is rendered by a county court upon default, and the defendant or a trustee therein is unjustly deprived of a hearing by fraud, accident or mistake, the party so deprived of a hearing may bring his petition or motion to such county court within two years from the rendition of such judgment and not after, to have the judgment so rendered by default set aside,” but insists that such power was taken from the court by that section. To strike off an entry of default and judgment at any time during the term when such entry was made, has always been within the power of the county court. R. L. s. 1,422 extended such power by enabling a defendant to bring his petition for that purpose at any time within two years from the rendition of the judgment. If a default is entered on or before the third day of the term, the defendant has the right, by R. L. s. 1,171, to have the entry [416] erased and a trial granted him. After the third day of the term it is not of right, but it is within the discretion of the county court. The case passed to this court before final judgment under R. L. s. 1,390. The action of the court below was correct. The cause is remanded for further -proceedings, with costs to defendant in this court.