Action of Assumpsit before a Justice of the Peace, by William T. Ryan against Cyrus P. Gears for professional services and for goods sold and delivered. Judgment for plaintiff. Defendant brings certiorari. Affirmed.
¶2[1] Summons was issued in this case on June 22 returnable on June 28, 1915. Personal service was made, but the return did not disclose when it was made. Whether the service was made fully four days before the return is unimportant, since the defendant appeared, which cured any defect in the service.
¶3[2, 3] The first adjournment was made on application of the defendant, and the second adjournment was made “by mutual agreement.” In the absence of anything to the contrary, it is to be taken that this adjournment was made upon the agreement and request of both parties. On the day to which the second adjournment was made the record shows that the plaintiff appeared, and that the defendant failed to appear; that the justice proceeded to hear the case in the absence of the defendant, and after hearing “the proofs and allegations of the plaintiff under oath, and maturely considering the same,” he did thereupon enter judgment “by default” in favor of the plaintiff and against the defendant. We think that the words “by default”, in view of the state of the record, may be treated as surplusage, and that the judgment rendered “upon proofs and allegations” is valid.
¶4We overrule the exceptions and affirm the judgment below.
