
    
      John Fraser & Co. vs. John S. Ryan.
    
    Plaintiff issued his writ in City Court of Charleston, to May Term, 1849: no appearance was entered at that term: in July, 1849, plaintiff, in consideration of defendant’s agreement to pay the debt within a certain time, promised to suspend further proceeding's, but was not to lose the benefit of having commenced suit: defendant failed to pay, and on 27th April, 1850, more than two terms after the return of the writ, plaintiff, without obtaining leave under 67th rule of Court, or giving defendant notice, filed his declaration, took an order for judgment, and had the case put on the inquiry docket, to May Term, 1850: at that term defendant entered an appearance. On the call of the docket, the Recorder allowed the plaintiff to take an order for final judgment, and, on appeal, his decision was sustained.
    
      In the City Court of Charleston, May Term, 1850.
    The report of his Honor, the Recorder, is as follows :
    “ In this case, I granted leave to the plaintiffs’s attorneys to file their declaration, take an order for judgment, and put their case on the inquiry docket. This was resisted by Mr. Campbell, on the part of the defendant, upon the grounds stated in a notice served on me, in his name, as the defendant's attorney. The circumstances, under and upon which the order was granted, were as follows: The writ, in this case, was issued to May Term, 1849, duly served, and no appearance entered by or for the defendant at that term. The further proceedings in the case was suspended at the desire and upon the application of the defendant, under an arrangement and understanding between the parties — the evidence and nature of which appeared by a certain letter written by the plaintiffs to their attorneys, Messrs. Petigru & Lesesne, which was brought to them by the defendant himself in person. The letter was dated July 2d, 1849, and was as follows:
    “Messrs. Petigru & Les'esne :
    
      Dear Sir, — We have made the following agreement with Mr. Ryan, to wit: on Saturday next, he will pay $100 on account of his note; and on that day, four months afterward, $100 more; and in four months after, the balance. And we have promised that no further steps shall be taken in the suit, upon the note, unless he fail to comply with the above terms ; but we are not to lose the benefit of having commenced at this Court.
    Yours sincerely,
    JOHN FRASER & CO.
    “ In pursuance of this understanding, proceedings were stayed. The first $100 was paid as stipulated; but the remaining payments were not made according to agreement, and the plaintiffs, on the 27th of April, 1850, within the year from the return of the writ, although two terms had intervened, filed their declaration, took an order for judgment by default, put the cause on the inquiry docket, and were about to take final judgment. It appeared to me entirely consistent with the strictest rules of practice, and proper that they should be allowed to do so. The farther proceedings, after the service of the writ, had been suspended at the request of the defendant; when this is the case, it does not lie in the mouth of the defendant, to object to the suspension. If the declaration had even been filed without leave or notice in the first instance, as in this case, I did not consider that, for that reason alone, it should be taken from the file and the proceedings set aside, but that, on application of the defendant, the Court would look into the facts, and if it judged a proper case for leave to file, would allow it to be done, or approve formally of, what had been already (perhaps informally) done ; and if the facts did not make out a proper case, would set aside the proceedings : that the leave to file might well be considered as granted nunc pro tunc, if the Court judged the proper case to be made out for such leave. It is proper to state that Mr. Campbell had entered an appearance in behalf of defendant, in the common appearance book, on the 18th May, 1850. No motion was made on the part of the defendant, by Mr. Campbell, founded on the merits of the case, or for leave to plead, or on the ground of surprise. The case was afterwards regularly called and disposed of, on the inquiry docket, and a final judgment entered up for plaintiffs for the balance of their demand.”
    The defendant appealed, and now moved that the decision of his Honor, the Recorder, be reversed, on the ground—
    Because the order of his Honor, the Recorder, permitting the declaration to be filed, and the case to be docketed, and ordered for judgment more than two terms after the return of the writ, was contrary to the rule of Court, and without the notice to defendant, required for such a motion by rule of Court.
    
      Campbell, for the motion.
    
      Lesesne, contra.
   Curia, per

Evans, J.

The defendant accepted the terms of the plaintiffs, as set forth in their letter. These were that in consideration the defendant agreed to pay the debt at certain times mentioned, the plaintiffs agreed to suspend further proceedings, but were not to lose the benefit of their action as far as it had progressed. The plain meaning of this was, that on failure to pay, the plaintiffs were to file their declaration and proceed to judgment. Accordingly, we find that not long after the expiration of the time fixed for payment of the balance, the plaintiffs did file their declaration. This was strictly what the defendant had agreed should be done. But the defendant’s counsel object that there was no notice given according to the 67th rule of Court. To this it may be replied — 1st. That by the agreement, he had waived the notice. 2nd. That where no appearance is entered, or notice of defence, it may very well be consistently with the rule, that the plaintiffs may proceed without notice. Why give notice, when the defendant, by default, admits he has no defence 1 But it is not necessary to express any opinion on this subject.

The most that can he said is, that the filing the declaration was an irregular act. It was not void. The defendant’s remedy was to move to set it aside, and the Court would, then, enquire into the facts: and if it was found that the delay was at the instance of the defendant, and that the further proceedings had been in conformity with the agreement of the parties, the motion of course would be refused.

But there is another view presented by the Recorder, that if the application had been made in open Court (when the objection to the filing was made,) for leave, the Court had authority to give leave to file it then, or to file it as at the time when it should have been done, nunc pro tunc. There is no doubt of the power of the Court to grant such an order, and that this was a proper case for its exercise. The only objection is, that, at that time, more than a year and a day had elapsed; but that cannot avail, for the defendant had entered an appearance at that term, thereby admitting himself in Court. The motion was made in open Court, in the presence of the defendant’s counsel, who did not. object that he had not had one day’s notice, as required by the 67th rule of Court, or that he was surprised by the motion.

We think the Recorder’s decision was right, and the motion to reverse it is dismissed.

O’Neall, Wardlaw, Frost, Withers and Whitner, JJ. concurred.

Motion dismissed.  