McNulty v. Everett

The facts and the conclusion of the court were stated by — Wright, Oh. J. Where a judgment by default was taken against two defendants, on the second day of the term, and on the next day, [582] one of them filed his affidavit of merits, and excusing his default upon the ground that he was the surety of his co-defendant, and had depended upon him to employ counsel and prepare the defense, according to his promise; and when on the day after this, the principal filed a like affidavit, and excused his default, upon the ground that he had been informed, by what he deemed a reliable source, that the “ term would be devoted solely to criminal business, that an appearance would not be necessary, as no defaults would be taken, and, that to the best of his knowledge, this was the general impression abroad in the community,” Held, that the court did not err in setting aside the default, upon condition that said defendant should plead instanter, or at least that there was no such abuse of the discretion properly and wisely lodged with the court below as to justify our interference. Affirmed.