
    JOHNS & CO. vs. BOYLE.
    Eastern Dist.
    January, 1840.
    APPEAL PROM TIIE COURT OF THE THIRD JUDICIAL DISTRICT, FOR THE PARISH OF WEST FELICIANA, JUDGE MORGAN PRESIDING.
    Three judicial days must elapse between taking judgment by default, and the day on which it is made final, or it will be reversed on an assignment of error.
    This suit is instituted on a draft, drawn by the defendant, and small account, for the aggregate sum of four hundred and ninety-one dollars.
    The defendant failed to appear. Judgment by default was taken the 7th December, 1838, and made final on the 11th; the 9th being Sunday. On the 5th January, 1839, a motion was made to set aside the final judgment, as having been prematurely rendered. The motion was overruled, under the provisions of the Code of Practice, article 318. The defendant appealed.
    Three judicial bebvSnSttaking ftmaenn(¡üiaton which it is made b^revei-sed'^n “^"ment of
    
      Andrews, for the appellant,
    assigned for error, that the judgment was improperly rendered, before the lapse of three judicial days, after taking judgment by default. 3 Louisiana Reports, 115.
    
      Patterson, contra.
   Morphy, J.,

delivered the opinion of the court.

The appellant assigns as an error apparent on the face of the record, that three judicial days did not elapse in this case, between the rendition of the judgment by default, and that of the final judgment. Although the word judicial be omitted in article 312 of the Code of Practice, which allows three days to the defendant to file his answer, we think that it contemplates those days when the court sits. Before filing such answer, the judgment by default must be set aside, which can only be done by a motion in open court. Such has been the construction this article has heretofore received, and no good cause has been shown why it should not be adhered to.

It is, therefore, ordered, adjudged and decreed, that the judgment of the District Court be annulled, avoided and reversed, and that this cause be remanded for further proceedings below ; the costs of this appeal to be paid by the appellees.  