
    JOSEPH McINTOSH ET UX v. CHARLES H. MOULTON, THOMAS H. CALLAN, SAMUEL CEAS, AND PATRICK CORCORAN.
    Equity. —
    No. 5,259.
    I. Partios defendants who have filed answers to a bill in equity are not entitled to have the bill dismissed for want of prosecution, unless they liave given ten days’ notice, as prescribed by rule 61, to complainants’ solicitor of the filing of such answer.
    II. If defendant neglect to give such notice, either party may set the cause down for hearing upon bill and answer without notice.
    STATEMENT OE THE CASE.
    This is a bill in equity filed November 21, 1876, and the answers of defendants Ceas and Corcoran were filed February 6, 1877; and on February 20, 1878, no replication having been filed to said answers, the said defendants obtained an order ex parte, or, rather, as of course, dismissing the bill for want of prosecution. June 1, 1878, the complainant, by his solicitor, made a motion to vacate said order, which motion was supported by an affidavit of said solicitor that he had no notice that said answers had been filed, or that said cause had been dismissed, until within the ten days then last past. An order was thereupon passed vacating the decree of February 20, 1878, dismissing the bill and reinstating the cause. From this order the defendants Ceas and Corcoran have brought this appeal.
    Rule 61 prescribes that “ whenever the answer of the defendant shall not be excepted to, the plaintiff shall file the general replications thereto within ten days after notice of the filing of such answers,” &c. And the sixty-second rule provides: “If'the plaintiff shall omit or refuse to file such replication within the prescribed period, the defendant shall be entitled to an order as of course for a dismissal of the suit,” &c.
    
      J. Parker Jordan, for complainants.
    
      L. G. Sine, for defendants.
    The question is, had the court below jurisdiction to nullify said decree three months and seven days — two full terms— after its enrollment ?
    Equity rule 61 does not aid the plaintiff, because it prescribes the time for appearance and answer. The plaintiff having invited defendants into court, must be presumed to have had notice that answers were filed within the time prescribed.
    The rule does not, it will be observed, require that a copy of defendants’ answer, or even notice of its having been filed, shall be served on the plaintiff or his solicitor, and such has not been the practice of this court since its organization. (Bank U. S. v. Mosset et al., 6 How., 591; Rower v. Smith, 1 Otto, 149; Equity Rule 88.)
   By the Court :

¥e decide in this case that the defendants were not entitled to have the plaintiffs’ bill dismissed for want of prosecution, unless they had given ten days’ notice to the plaintiffs’ solicitor of the filing of their answer. That notice may be given either at the time of filing the answer or at any time subsequently. The ten days are to be counted from the time of service of notice upon the plaintiff’s solicitor. If the defendant has neglected to give the notice after having filed his answer, and the plaintiff chooses to set the cause down upon the bill and answer for hearing, he can do so, and the same privilege belongs to the defendant, and that without notice. The setting the cause down for hearing is notice itself.

The order appealed from must be affirmed.  