¶1In this action the defendant was served with process to the August term, 1869, of the court below.
¶2On the first day of that term he appeared and applied for a continuance upon affidavit of the absence of a material witness. The probate court declined' to entertain or determine this motion, and immediately gave judgment against the defendant for want of a plea.
¶3This was clearly erroneous. Whether the court could proceed to such judgment without disposing of the motion or not, upon which we express no opinion, we think the' defendant was entitled to the whole of the first day of the term in which to plead. A judgment for default of appearance could not have been given upon that day ; and we think the defendant was entitled to the same period of time, both to appear and put in his plea.
¶4These two things he was required by the process to do upon that'day, and he was entitled to the whole day to comply with the mandate of the writ.
¶5The judgment is, therefore, reversed, and the cause remanded for' further proceedings.
¶6Reversed.