Hoehne v. Rupear

Hoehne v. Rupear. Practice —judgment nil dicit cannot be taken on return day. Judgment nil dicit cannot be entered on tbe return day of tbe summons, even if the defendant appear on that day and move to continue the cause. Error to Probate Court, Las Animas County. Mr. W. F. Stone and Mr. E. L. Smith, for plaintiff in error. Mr. H. It. Hunt, for defendant in error. [MAJORITY — Wells, J.] Wells, J. In this action the defendant was served with process to the August term, 1869, of the court below. On the first day of that term he appeared and applied for a continuance upon affidavit of the absence of a material witness. The probate court declined' to entertain or determine this motion, and immediately gave judgment against the defendant for want of a plea. This was clearly erroneous. Whether the court could proceed to such judgment without disposing of the motion or not, upon which we express no opinion, we think the' defendant was entitled to the whole of the first day of the term in which to plead. A judgment for default of appearance could not have been given upon that day ; and we think the defendant was entitled to the same period of time, both to appear and put in his plea. These two things he was required by the process to do upon that'day, and he was entitled to the whole day to comply with the mandate of the writ. The judgment is, therefore, reversed, and the cause remanded for' further proceedings. Reversed.