Miklauschutz

The record before ns discloses that on August 8, 1910, petitioner, as plaintiff, commenced an action in the justice’s court against certain defendants. On August 12th following a stipulation was signed by the attorneys for the respective parties setting the action for trial on the 12th of September, 1910. At the same time counsel for defendants directed the attorney for plaintiff, temporarily acting as justice’s clerk, to enter a general denial. This the attorney neglected to do. Thereafter, on August 15th, defendants’ default was entered, and also judgment entered against defendants. On September 3d defendants moved to set aside the default on the ground that the same was taken after issue made and before time fixed for trial. The court declined to pass, and never did pass, upon this motion. Thereafter defendants gave notice of an appeal on questions of law and fact, and the papers were certified to the superior court. No statement of the case, however, was filed. The superior court, when a motion was made by counsel for plaintiff for judgment upon the pleadings, denied the same, and upon the hearing vacated the judgment of the justice and remanded the cause for trial upon its…