
    William A. Meloy vs. Albert Grant.
    Law. No. 25,658.
    Decided March 22, 1886.
    The Chief Justice and Justices James and Merrick sitting.
    1. Where judgment is rendered by default for want of a plea the motion to strike it out may be granted under the 72d rule of court.
    2. But where the judgment is rendered for failure to comply with the 73d rule, the motion to vacate it must be under the 90th rule.
    3. An order vacating a judgment by default under the 72d rule is not appealable.
    Appeal from an order vacating a judgment by default.
    STATEMENT OE THE CASE.
    This case involves a question of practice under the 72d, 73d and 90th rules of court which are as follows:
    “Rule 72. If the defendant, served with copies of the declaration, notice to plead and summons, fail to appear and plead according to said notice, a judgment by default for non-appearance may be entered against him at the appearance term by the circuit court, or at special term, which judgment may be set aside during said appearance term, or within the first four days of the next trial term, upon the defendant’s offering a plea, verified by his affidavit, setting up a defence considered by the justice sufficient, if proved, to bar thé action in whole or in part.
    “ Rule 73. In any action arising ex contractu, if the plaintiff or his agent shall have filed at the time of bringing his action an affidavit setting out distinctly his cause of action, and the sum he claims to be due, exclusive of all set-offs and just grounds of defence, and shall have served the defendant with copies of his declaration and of said affidavit, - he shall be entitled to a judgment for the amount so claimed, with interest and costs, unless the defendant shall file, along with his plea, an affidavit of defence denying the right of the plaintiff as to the whole or some specified part of his claim, and specifically stating also, in precise and distinct terms, the grounds of his defence which must be such as would, if true, be sufficient to defeat the plaintiff’s claim in whole or in part.
    “Rule 90. Motion to vacate judgment. This motion will not be entertained if made after the defendant has taken any fresh step after the knowledge of the irregularity, or surprise, or fraud, or deceit complained of; nor can it be made after execution executed unless the defendant had no notice of the judgment.
    “ The motion must be in writing, and the grounds upon which it is founded must be sworn to by the mover and supported hy affidavits or otherwise, as he may be advised; and a copy of the motion and accompanying papers must be served on the opposite party at least four days, Sundays excepted, before the day fixed for the hearing.”
    On the 6th of October, 1884, plaintiff caused a copy of the summons, declaration, notice to plead and of his affidavit setting out his cause of action and the sum claimed to be due, exclusive of all set-offs and just grounds of defence, to be served on the defendant personally.
    On the 10th of November following, the defendant’s appearance and plea being overdue, the court, oh motion of plaintiff, entered judgment for the defendant for the amount claimed to be due.
    . The next trial term of the court opened on the 26th day of January, 1885. On the fourth day after the defendant offered a plea and affidavit and.moved the court to vacate the judgment and allow him to file the plea, which was done.
    
      The plaintiff appealed from the order.
    William A. Meloy for plaintiff.
    S. S. Henkle for defendant.
   Mr. Justice Merrick

delivered the opinion of the court.

This is an appeal taken from an order of the circuit court vacating a judgment by default for want of a plea, on the fourth day of the succeeding term, and allowing the defendant to plead to the merits of the action.

It is contended, on the part of the appellant, that the judgment was obtained under the 73d rule of court which provides for judgments by default in actions ex contractu where there has been an affidavit to the cause of action, and that it does not come within the terms of the 73d rule, but that the only mode of vacating a judgment, rendered under the 73d rule, is under the provisions of the 90th rule.

But it seems that the judgment could not have been rendered in this case under the 73d rule ; that is, for want of a plea and affidavit of defence, for it was simply a judgment by default for want of a plea. It fell, therefore, entirely within the provisions of the 72d rule, which allows a motion to be made to strike out a judgment by default for want of appearance at any time within four days of the next succeeding term where the pleas are presented in proper' form with a proper affidavit of merits.

That was doné in this case. Within the first four days of the succeeding term the defendant came into court and complied with the requirement of the rule by offering his plea supported by a sufficient affidavit.

The court is of opinion that, under such circumstances, the case falls within the 72d rule. If the judgment had been because the plea was without an affidavit of defence, or because the affidavit was insufficient under the requirement of the 73d rule, then the judgment could not have been struck out except for cause shown in the manner provided in the 90th rule. But the judgment, as a judgment by default for want of a plea, stood entirely witliin the letter as well as the spirit of rule 12, just as in any other case of default for want-of a plea. So that the party was entirely within time and it is nothing more than right and just that, in conformity with the terms and the spirit of the rule, he should have leave to plead and make the substantial defence which he has sworn is capable of being made in the case. The judgment below is therefore affirmed. Perhaps it might be proper to say that inasmuch as the application was to the discretionary power of the court, it is not an appealable case at all but that the appeal ought to be dismissed.  