¶1An affidavit of merits is necessary where the defendant is in default and the judgment is entered pursuant to the rules of the court. Here there was no default; the application to the clerk, and his promise to enter an appearance, are equivalent to an appearance; the attorney was not bound to enter his appearance on the docket, and though the plaintiff’s counsel did not know of the application, yet as he takes judgment at his own risk, he cannot retain it under such circumstances. The judgment and execution must be set aside.
21 F. Cas. 1225
Sheepshanks v. Boyer
U.S. District Court
Decided April 15, 1827
U.S. District Court · decided 1827-04-15
The declaration was served on the 11th of April; a rule to plead in twenty days or judgment was entered, and on the 4th of May, on proof of personal service of the declaration, judgment was entered, and habere facias possessionem issued. On the 16th of October. 1827, Mr. Rawle, Jun., moved to set aside, on his affidavit, that before any entry of judgment, he called on the clerk, and directed him to enter an appearance for the defendant, which he promised to do.
Decided 1827-04-15