State ex rel. Howell v. Bryan
State ex rel. C. A. Howell and C. C. Howell, Partners Doing Business as Howell & Son, in Error v. L. E. Bryan, Clerk Circuit Court Lafayette County, in Error
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Opinion of the Court
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Cockrell, J.
To a judgment final dismissing their- petition for an alternative writ of mandamus to compel the clerk to enter a default in their behalf against a defendánt in a pending action at law, the relators prosecute this writ of error.
We have no transcript of the files in the common law action before us, and are asked to accept as verity, against the ruling of the Circuit Judge who supposedly had the files before him, certain unverified assertions in the relator’s petition. Should we overcome this defect, there are yet lacking sufficient facts to justify a reversal. The petition alleges a service on an agent of the corporation defendant on October 11, 1912, a failure of the corporation to appear at the November Rules, and a request to the Clerk by the relators on the twenty-first of that month for a default. We are not advised by the petition that the defendant was in default when the plaintiffs asked for it, but only that it was in default when the plaintiffs might-have requested it.
It is argued here that the Court held that no default could be entered by the Clerk, unless the praecipe was filed on the November Rules. The judgment entered indicates no such holding, and the petition does not raise that issue of law.
Judgment affirmed.
Shackleford, C. J., and Taylor, Hocker and Whitfield, J. J., concur.
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