The Federal Reporter with Key-Number Annotations, Volume 256: Cases Argued and Determined in the Circuit Courts of Appeals and District Courts of the United States, May-July, 1919. Page: 39
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HOWIE MINING CO. V. M'GARY
the default judgment entered in this case in term at Martinsburg, on
the 4th day of April, 1918. The reasons assigned for such relief
First--Because of the fraud practiced therein against the defendants, and
each of them, bi3 the pl.lntlff, or at least by certain of its attorneys.
Second-'That bodll of the defendants exercised due diligence in the pro-
tection of then righl?s and tilhe precaution of their case, but they virtually
never have had lthir day in court-neer hadl even an opportunity to be
heard or to pre ent their defense, and all this, too, through no fault oi theirs.
Tl'd--That Ie .judgiuent ~ as taken after the act ot Congress, known as
"'Soldiers and iaullors Civil Relief Act," approved Mlarch 8, 10)18, was in
force, and the aflidavit or piloof that defendants were not in the military
or naval service of the United States at the time \ as not filed.
The substantial facts are these:
Summons was sued out of the clerk's office at Martinsburg on Feb-
ruary 7, 1917, returnable to March rules. By the West Virginia stat-
ute rules are held in the clerk's office every first Monday in a month,
except when a term of court happens to commence on the first Mon-
day in a month, or either of the two following days, or on the preced-
ing Tuesday, Wednesday, Thursday, Friday, or Saturday, the rules
which otherwise would have been held for the said month on the first
Monday, shall be held on the last Monday in the next preceding month,
The rules may continue three days; but when in any case such con-
tinuance would interfere with the terms of the court for which the
rules are held, they shall not continue in such case beyond the day
preceding the commencement of the term of court. The rules may
be to declare, plead, reply, rejoin, or for other proceedings; they shall
be given from month to month.
A defendant may appear at the rule day at which the process against
him is returnable, or, if it be returnable in term, at the first rule day
after the return day, and, if the declaration or bill be not then filed,
may give a rule for the plaintiff to file the same. If the plaintiff fail
to do this at the succeeding rule day, or shall, at any time after the
defendant's appearance, fail to prosecute his suit, he shall be nonsuited,
and pay to the defendant, besides his cost, $5. If three months elapse
after the process is returned executed as to any one or more of the
defendants, without the declaration or bill being filed, the clerk shall
enter the suit dismissed, although none of the defendants have ap-
peared. Hogg's W. Va. Code, 4755, 4759, 4760, and 4761 (chapter
125, sections 1, 5, 6, and 7).
 It is not controverted that the summons, served in person on
both defendants, with proper indorsement of such service, was re-
turned by the marshal to March rules, 1917, at which no appearance
was made and no declaration filed; at April rules following no ap-
pearance was made and no declaration filed; at May rules the dec-
laration was filed anil common order taken, which at June rules was
confirmed and a writ of inquiry awarded. The effect of these pro-
ceedings at rules, with no appearance by the defendants, was to es-
tablish liability and leave only the amount of damages to be awarded,
to be ascertained by the court. The next term of court was held, com-
mencing on the third Tuesday of September (the 17th), 1917, when,
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The Federal Reporter with Key-Number Annotations, Volume 256: Cases Argued and Determined in the Circuit Courts of Appeals and District Courts of the United States, May-July, 1919., legislative document, 1919; Saint Paul, Minnesota. (digital.library.unt.edu/ark:/67531/metadc38827/m1/53/: accessed February 18, 2018), University of North Texas Libraries, Digital Library, digital.library.unt.edu; crediting UNT Libraries Government Documents Department.