Castlio v. Bishop

Adams, Judge, delivered the opinion of the court. This case comes up on a question of practice. It was an action of ejectment. After one or two amended answers had been filed the plaintiff took leave to amend his petition, and filed an amended petition in vacation, which was occasioned by the adjournment of the same term to another day. At the meeting of the Court after this adjournment, the case by consent was continued till the next term. At the next term there being no answer filed, the plaintiff filed a motion for judgment for want of answer, which was taken up the next day and sustained, and a judgment for want of answer rendered and afterwards made final. The defendant moved to set aside the judgment by default, and for leave to answer, upon the ground that no notice bad been served on him of the filing of the amended petition. [163] Tins motion was heard by the court and overruled, but the bill of exceptions does not show what evidence was given upon the trial of the motion. Nor was there any affidavit of a meritorious defence filed with the motion. This court must presume everything, in support of the judgment below, which can be fairly inferred from the record. As the evidence upon which the motion was decided is not preserved, we must infer that there was due proof of notice of filing the amended petition. Besides, a judgment by default regularly rendered will not be set aside unless there be due dilidenee shown, and also an affidavit of a good and meritorious defence filed. This seems to be the settled law in this State. The judgment must be affirmed. Judge Wagner concurs. Judge Bliss absent.