Rice v. West

Grason, J., delivered the opinion of the Court. It appears from the record in this case that a judgment by default was entered against the appellant on the 14th day of September, 1874, and that, on the following day, a motion was filed to strike out the- judgment. Pending that motion, the appellant, on the 26th day of September, ⁶¹⁶ filed a suggestion and affidavit for the removal of the cause, and on the same day the Court refused to remove the cause, and the defendant appealed. On the same day the Court also overruled the motion to strike out the judgment.

On the 14th of November following, judgment was extended, and on the Wth day of the same month execution was issued, and on the 23rd a motion to quash the execution was filed. On the 28th of November the Court overruled a motion, filed that day, to strike out the order overruling the motion to strike out the judgment, as also the motion to strike out the judgment extended in the case, as well as the motion to quash the execution, and the defendant took an appeal from the decision of the Court overruling said motions. The questions presented upon this appeal are therefore, first, whether a removal of a cause can be had after a judgment by default, and second, whether, after an appeal has been taken from the action of the Circuit Court, refusing to remove the cause there is power in that Court to extend the judgment by default and issue execution thereon ? First. — In the case