Buttz v. Campbell

Action om money demand and judgment by default, in December, 1879. A few days afterwards and during the same term, defendant gave notice of motion to open the default, upon affidavits showing that his failure to answer had been caused by illness, and that he had a good defence. The motion was heard upon these affidavits, and upon counter-affidavits which raised a conflict of statement. The Circuit judge refused the motion, and defendant then excepted and gave notice of appeal, and two days after the rising of the court gave to plaintiff formal notice of appeal. Defendant claimed that the Circuit Court should have granted the motion under Section 197 of the code. Plaintiff moved to dismiss the appeal, because no exception was served upon the respondent or the Circuit judge within ten days after the rising of the court. Held — .

1. That there was no ground for the motion to dismiss the appeal.

2. That no error of law was disclosed in the order refusing the motion to open the default, and it must, therefore, be assumed that the order was the result of the conclusion of the Circuit judge as to the weight of the evidence, a conclusion with which this court cannot interfere. Opinion by MoIyer, A. J.,