Rogers v. Ladd

The affidavit of no defence authorized by the St. of 1874, c.‘248, § 3, in an action to recover a debt, may be made by one of several plaintiffs; and the notice of the order to show cause why judgment should not be given for the plaintiff may be given to the attorney of record of the defendant. It is within the discretion of the Superior Court to refuse to take off a default in an action pending in that court, and to the exercise of such discretion no exception lies.

Contract on a promissory note. Writ returnable to January term 1875, of the Superior Court for this county. On February 5,1875, F. H. Rogers, one of the plaintiffs, made and' filed the following affidavit under the St. of 1874, e. 248, § 3 : * “ And now comes F. H. Rogers, one of the plaintiffs in the above entitled action, and says, that said action is brought upon a note signed by the defendants, Ladd and Warren, by the firm name of George O. Ladd & Co., and was indorsed for value due the plaintiff by the other defendant. And he further says, that on the delivery of said note, the said Ladd and Warren received a full and sufficient consideration, in lumber delivered to them. And he further says, that the said note is justly due, and that he believes the defendants have no defence whatever thereto, but appear in court therein merely to obtain delay. And he further says, that the said Ladd has repeatedly promised to pay the said note to the plaintiff, and has offered to pay it in instalments, and has promised to pay it since the commencement of this action, as soon as he could, and that at the giving of the bond to dissolve the attachment in this action, that said Ladd said that the money was in the bank in readiness to pay the said note when it became due, and it would have been paid if the said Warren, in the said Ladd’s absence, had not mislaid and misapplied the said money. And the plaintiffs pray that the said action may be advanced for speedy trial.” The following order was thereupon passed: “ Superior Court, Suffolk, ss. January term 1875, viz., February 5, 1875. F. H. Rogers vs. George O. Ladd et al. And now in the above action the plaintiff, on the fifth day of February, 1875, having filed an affidavit verifying the cause of action, and swearing in his belief there is no defence, it is ordered that the defendant forthwith appear at said court and show cause why judgment should not be given for the plaintiff. By the Court, Joseph A. Willard, Clerk.” On February 10,1875, the following affidavit of the plaintiffs’ attorney was filed: “ I, James D. Thomson, the plaintiff’s attorney in the above entitled action, on oath, depose and say that I served the within by giving to Sanford H. Dudley, Esq., the defendant’s attorney, in hand, a true copy of the within order on Saturday, February 6, at eleven o’clock in the forenoon.” Thereupon the action was advanced for a speedy trial, and defendants, though called, did not appear, but made default. On February 19, 1875, the defendants moved that the default be taken off, and assigned the following reasons therefor: “ 1. That no service of notice upon the defendants has ever been made, according to the requirements of the St. of 1874, c. 248, as appears of record. 2. That said default was entered without notice to the defendants real' or constructive, and they have not had an opportunity for trial.” On February 24, the plaintiffs moved for judgment. The court overruled the motion to take off the default, and ordered judgment for the plaintiffs for a stated sum; and the defendants appealed to this court.