
    JAMES CUNNINGHAM & SONS CO. vs. CIRCUIT JUDGE (Wayne),
    No. 13799.
   To vacate an order setting aside a judgment by default, entered for want of appearance and plea.

Denied November 15, 1893, with costs.

Respondent contended (1) that the affidavit served with plaintiff’s: declaration is fatally defective, because it is not stated therein that the amount due is “over and above all legal set-offs;” (2) that the first, default was entered August 26, 1893, and the default absolute and judgment, August 31, 1893, and as August 27 was Sunday, the default absolute and judgment were entered one day too soon; that where a rule or statute requires a certain number of intervening days, the-same being less than the week, Sunday is excluded; Drake vs. Andrews, 2 M., 203; Simonson vs. Durfee, 50 M., 81; and (3) that, defendant had explained and excused his failure to plead seasonably,, to the satisfaction of the circuit judge. Relator contended that Sunday was properly excluded, citing Corey vs. Hiliker, 15 M., 314; Anderson vs. Baughman, 6 M., 298; Harrison vs. Sager, 27 M., 476; Dale vs. Lavigne, 31 M., 149.  