Ross v. Hubble

Decided February 15, 1804

New York Supreme Court · decided 1804-02-15

This was a motion to sot aside the default entered in the cause, and all subsequent proceedings, with costs. ■ The affidavits contained a variety of unimportant facts, but the only question worth noticing, which was relied on, was one of practice, whether it was regular to a writ, which was in trespass only, and returned(b) with the names of the defendants endorsed, to enter their appearance in the clerk’s office, after judgment was signed.

Decided 1804-02-15

Per Curiam.

¶1It is said that no appearance of the defendants, by special or common bail, or an entry of an appear*647anee was of record, when the default and judgment were returned. As the process in the cause did not require bail, the defendants endorsed their appearance on the copias. It was the business of the clerk, and not of the attorney, to have ^"entered their appearance. This [*513] may be done nunc pro tune. The loches of the clerk ought never to prejudice the attorney.[1] We, therefore, deny the motion with costs of opposing.

¶2Motion denied, with costs.

¶3 On this point see also Hester v. Haynes, 6 Wend 547.