Hoey v. Aspell & Co.

[201] The opinion of the court was delivered by Collins, J. This cause has been argued and will be decided on the assumption that the judgment entered after the issuance of. the writ, but before its return, is properly before us. Error was assigned on outbranches certified in the return, and, although correct practice required our certiorari to regularly bring those before us, we have considered the facts assigned for error because the common joinder, in nullo est erratum, confesses such facts and renders a certiorari unnecessary. Gilliland v. Rappleyea, 3 Gr. 138. It is plain that the first judgment was entered prematurely. The defendants, not served with process, had, by the statute, sixty days from the return day within which to plead or demur, yet judgment was entered before that time had expired. A mere rule in the minutes, entered by a plaintiff or his attorney, under color of the statute, if unlawfully entered, is utterly void (Gen. Stat., p. 2557, § 144), but this judgment was recorded and signed by the judge. Such a judgment, though irregular or premature, stands until reversed or set aside. 6 Encycl. Pl. & Pr. 58, 98. This being so, the right to plead in the action was barred by the judgment. Recognizing this, the defendants brought and served the present writ of error. Thereupon the plaintiff, ex parte, procured the erroneous judgment to be vacated as improvident and the judgment now extant to be entered in its stead. This was clearly irregular. The right to plead having been cut off by the first judgment, it cannot be that a mere vacation ipso facto revived the obligation to plead. Even if it did, the new judgment cannot stand, for the defendants could at least claim as much time as remained to them when the first judgment was entered, but we think that the case comes within the general rule that where there has been an interruption of the statutory course of pleading the party who must next plead cannot be put in default until ruled to do so. Berry v. Cahanan, 2 Halst. 135. The judgment will be reversed. [202] In the three cases of the same plaintiffs in error, one against Frank J. Heidi, one against William C. Keller and the other against Charles Otten et al., defendants in error, the same question is presented. The cases vary in dates but are alike in relations of dates. The judgment in each of those cases will also be reversed.