
    
      FORTIN vs. RANDOLPH.
    
    No appeal lies from an order setting a judgment by default aside and conti-iming the cause.
    Appeal from the court of the third district.
    Dumoulin, for the plaintiff.
    This case is a kind of judicial anomaly. The appellant, who was plaintiff in the inferior court, obtained there a judgment by default, which default is subsequently confirmed ; yet notwithstanding that the record shews these facts in this case, by an unheardofand unauthorized proceeding, the plaintiff is frustrated of his judgment, and compelled to appeal for its enforcement. But here he is told he cannot appeal. This assertion he answers with a decision of this court, which shews that an appeal may lie in such a case, since, in a similar one, such an objection was made and over-ruled. 4 Martin, 314. Case of Prampin vs. Jlndry.
    
    East’n District.
    
      April, 1822.
    That the judgment by default was duly obtained ; that it was subsequently duly confirmed, appears from the record. Randolph, the defendant, did not in the court below procure an order for further time to answer. He applied to have the judgment by default set aside, which the court refused. He excepted to this refusal of the court, and we find, that step by step he contested his ground. He can then complain of no surprize, and if the judgment was erroneous and illegal, as he contends his remedy was by appeal, and not by an application for a new trial. This last measure, which was the one he selected, was forbidden him by the law, since the delay of such an application had expired; thirteen judicial days having elapsed before he addressed himself to the court on this point. Had he applied in time to the inferior court for a new trial, and that had been refused him, he could have appealed from that refusal, as decided by the case of Hatch vs. Gillit, 8 Martin, 169. But instead of adopting any of the means of redress, (if he was entitled to any) as pointed out by him, or as shewn and directed by the principles laid down in the decisions of this court; he passes them by as idle nonsense, or perhaps rather from his conviction that they could afford him no redress, and creates a new and unauthorized proceeding, for which he obtains the sanction of the court below. I feel convinced, that from an inspection of the record, and a view of the law applicable to the facts therein contained, this court will do justice to the cause of my client. It would be a loss of time, and too great an intrusion on the patience of this court, to cite the familiar laws of practice by which such a case as the present must be governed. The authorities cited in support of the points we have made speak for themselves.
    
      
      Preston, for the defendant.
    The judgment by default was obtained irregularly, inasmuch as at the time it was taken, an order of court.was on file, allowing the defendant fur-thér time to answer. To this order, it is objected^* that it wTas obtained without affidavit, or if an affidavit was made, it was filed in another suit as well as the order itself. Our statute does not require an affidavit to obtain from the court an order, allowing further time to answer. It is a matter entirely within the discretion of the court. The order may be granted on a mere suggestion. Whether the discretion of the court were properly or improperly exercised, cannot be questioned in this appeal; for the court having granted the order, allowing time to answer it; afterwards, if they had been of opinion, that the order was improperly granted, and had been disposed to rescind it, it ought to have been rescinded regularly, and the defendant restored to those advantages he enjoyed without the order: the advantage of filing an answer and defending his suit before a jury. Nor does the statute require that the affidavit and order should be filed in any particular suit, but that the defendant should “ file it with the clerk.” The defendant did all that was required of him hv 1 the statute, and. surely mens’ fortunes are not ¿epen<jant on the circumstance of the c]erk>s fj]ing a document in this or that particular bundle of papers. We have not yet yielded to such a regard to form and*disregard of substance.
    The judgment by default having been obtained irregularly, it ought to have been set aside on application. Here the appellant resorts to the miserable shift, that the affidavit in support of the application was not sworn to. It appears by the record, that the plaintiff had instituted two suits, one against the drawer and the other against the endorser of a note. The judgment by default was taken against the endorser, the present defendant. Both defendants made affidavit to set it aside, on the same piece of paper; the justice of the peace only signed his name to the bottom of the paper. By the strictest law, the justice of the peace authenticated every thing above his name. At all events, one of the affidavits was sufficiently attested, and being the affidavit not of the party to the suit, but of another person, I think was the best of the two. But the truth is, the statute requires no affidavit; but only to shew good cause to set . . aside the judgment by default. And what better cause could be shewn to a judge, to set aside a judgment for want of an answer, than to shew him his own order, allowing time to answer. If, however, there was any informality in it, it was insignificant in the extreme, and our statute imperatively prohibits this court from noticing it. “ No judgment shall be reversed for any defect or want of form.” Martin's Dig, 444.
    The judgment by default having been irregularly obtained, the pretended final judgment based upon it is a nullity. But there was no final judgment, and this appeal must be dismissed. The judge reflected better, and never signed it, but set it aside, and granted a continuance of the cause. It has been decided by this court, that that, which may become a judgment by the signature of the judge, is not so until signed. Turpin vs. his creditors, 9 Martin, 562. Shaumburgh vs. Torry í»- al. syndics, 10 Martin, 178 & 179. But it is contended by the appellant, that the judge ought to have signed the judgment in three days. If this was neglected, he ought to havé demanded the signature of the judge in that cause, and if it was refused, to have tendered his bill of exceptions. But, on whomsoever the blame must fall, surely the neglect of the jU(]ge to act cannot make that a judgment, to which the act of the judge is requisite.
    With regard to the continuance of the cause, it has been so often decided, that an appeal cannot be taken from an interlocutory judgment, that it would be supererogation to say any thing on that point. It was rightly granted, and if not, it does not work an irreparable injury.
   Porter, J.

delivered the opinion of the court. The defendant was sued as indorser on a promissory note, made by one Blunt, in payment of a tract purchased by him, from the plaintiff.

By the facts on record it appears, that a judgment by default was taken against defendant, which was afterwards made final. Before it was signed, application was made to the court to reconsider its former opinion; this was acceded to, and after argument, the judge directed that the judgment already given be set aside, and the cause stand continued. From this order or decision the plaintiff has appealed, and alleges, on several . , . . . grounds, that it is erroneous, and ought to be reversed.

The defendant and appellee meets the plaintiff, by averring that the decision is not such a one, as can be appealed from. To ascertain whether this objection is well taken, we must examine if it is a final judgment, or a decree of such a nature as will occasion a grievance irreparable to the party against whom it is given.

It is not a final judgment; for the cause is yet pending and stands continued. Nor do we consider that any final judgment has been given in this case. That which the court set aside was not one, for it had not the judge’s signature, which is required by our law to make a judgment complete. 2 Martin's Dig. 164. 10 Martin, 178-9.

It does not work a grievance irreparable; it is quite different from the case of Prampin vs. Andry. 4 Martin, 314, to which we have been referred, and from all the other cases decided in this court upon that principle. Without referring to each particular decision, it will be found that those were cases where the judge a quo refused the parties a new trial or continuance; deprived them of the benefit of a judgment obtained; set aside some process or writ given in the preliminary stages of a suit, to secure the plaintiff’s rights, or discharged the defendant out of custody, when arrested. If the judge erred in the instances just put, the party was without remedy, and the injury irreparable. Supposing a mistake in this case, no such consequence is perceived; the cause stands continued, the parties will have it tried, and it is presumed, as fairly, one term as another; mere delay cannot be regarded as an irreparable injury. 3 Martin, 171. 9 id. 494. 10 id. 444.

It is therefore ordered, adjudged and decreed, that the appeal be dismissed with costs.  