West v. Talman

Case No. 17,426. Suit for Land — Service ox Tenant. Judgment by default and habere facias pos- i sessionem executed, set aside: the service not ¡ being made on the tenant in possession, but on \ the landlord. ;

Motion to set aside the judgment by default • entered in this case and the habere facias pos- ¡ sessionem returned executed; upon the ground of irregularity in the service of the ejectment. It appeared by the affidavit of the service, that the declaration was served upon Mr. White, the landlord, who acknowledged the service, and promised to have it acknowledged by the tenant in possession, the defendant, which was not done. It appeared by the affidavit of the plaintiff’s attorney, that Mr. White, the landlord, had mortgaged the premises in question to one of the banks of this state, and that, after the institution of this suit, he conveyed the equity of redemption to one M. That White and M. were repeatedly informed that judgment would be entered by default unless an appearance was entered; and that frequent promises were made by White, that an appearance should be entered. That even after the judgment was entered, the plaintiff’s attorney offered to open it, upon an appearance being entered, but that nothing was done indicating a disposition to have the cause tried.