General
Giles against Caines
3 Cai. 107·New York Supreme Court of Judicature·1805·NY
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Opinion
Giles against Caines.
NEW-YORK,
May, 1805.
, An irregularity not known, is not waived by a subsequent step taken by the opposite party who may enter a default on the former irregularity if done so soon as known. Though the rule is that an application to set aside a default coomes to late if the judgment on it be perfected, yet, on a strong case of merits, it may be done on payment of costs, if the irregularity be merely the want of filing a paper served.
AFTER noticing for trial, it was discovered that the defendant’s attorney had not filed the plea, a copy of which he had delivered, the plaintiff therefore entered a default as for want of a plea- To set aside this, the defendant noticed for the first day of term, but having obtained no order to stay proceedings, and not bringing on the motion upon that day, the plaintiff duly executed a writ of inquiry. On these facts, and a strong affidavit of a good and substantial defence upon the merits,
Caines
tuoyed, to set apíde *he default and all subseouent proceed-fogs. There was a distinction to be taken he said, between the cif-cumstances here, and those in Shephard ads. Case, Cole. 90. There, the plaintiff had done no act to waive the default, and therefore as it stood in full force, his perfecting his judgment afterwards was regular; butinthepresent instance, he had, byjoining issue and notice for trial waived the mere form of filing the plea, and had no default on which to rest. He had himself, knocked away the fonndaton, on which he stood. As to the want of filing the plea, that ’ or* was a mere form, and the court would order it to be done on the suggestion of the plaintiff himself. Cohan ads. Kifl, Cole. 45.
Évertson contra.
This is not to be distinguished from Shephard ads. Case. The plaintiff could rot Waive that which he did not know.
[MAJORITY — Per curiam.]
Per curiam.
The omission of filing the plea, not being known when issue was joined, or the cause noticed, cannot be cured by those acts. The principle therefore of Shephard ads. Case, applies. Though there is a strong affidavit of merits, we can relieve only on terms; those must be payment of costs, and filing the plea instanter.