Klemm v. Dewes

Walker, J. The summons was against four defendants. It was served on three only, and returned not found as to the other. Eo appearance was entered by the defendant not served, but a default was taken against all the defendants. Afterwards, and before a final judgment was entered on the default, the record shows that defendants entered a motion to set aside the default, which does not appear to have been disposed of, but a judgment was rendered on the default. It ‘is urged, that the entry of this motion cured the error of taking a default against a defendant not. served, and who had not entered his appearance. Had he entered a general appearance, even at that stage of the proceeding, there might be some force in the position. It might then be said, that the object was to cure an irregularity, and give validity to the judgment. But in this case the object was to get rid of a judgment which was void as to him. How this could give validity to a void judgment we are unable to perceive. To do so, would be to hold that a denial of validity, was to give it force and effect. It would be to reverse all the presumptions arising from human action. Even if this was a general appearance, the court erred in not vacating the judgment by default, and letting him in to make his defense. It was manifest error to render judgment against this defendant, while his motion was still pending. The judgment of the court below is reversed, and the cause remanded. Judgment reversed.