Ekhart against Dearman

Ekhart against Dearman. If a defendant, before his time to plead be out, give notice of motion to change the venue, without obtaining an order to enlarge the time to plead, or stay proceedings, and the plaintiff for want thereof, enter a default, and go on to execute his writ of inquiry, he is regular; but if he do not intend to oppose the motion, he waives his own regularity and the irregularity of the defendant, and the court will set aside the default and subsequent proceedings. Ostrander moved to set aside the default and all subsequent proceedings on tbe following facts: On the 2d of October the declaration was served on an agent. On the 11th, the defendant gave notice of a motion, to be made the 12th of November, for leave to change the venue, but on the 10th the plaintiff entered a default, and never appeared on the 12th to oppose the application, in consequence of which the venue was changed as of course. See vol. 1, p. 2, marginal n. [MAJORITY — Per Curiam.] Per Curiam. The defendant’s conduct has not been perfectly regular. He ought, according to the rules of practice, to have obtained a judge’s order to enlarge the time to plead, or a certificate to stay proceedings. But though there was an irregularity in the defendant, and the plaintiff was correct in entering the default, he has waived both by silently acquiescing *in the event of a motion which he knew must be successful. By not appearing his language is, I consent to the application. If so, he certainly agrees to relinquish the default, and every other advantage. . Motion granted.