#### Welch vs. May.

In *March,*1859, a defendant obtained an order staying proceedings till the fur-; ther order of the court, upon a judgment which had been entered up against' him in *June,*1858, and then took no further step in the matter until *cTitty,*1860, when he applied for an order to show cause why the judgment should not be set aside: *Held)*that this was not such diligence as the law requires in such a case, and that the motion was properly denied.

APPEAL from tbe Circuit Court for *Bock*County.

This was an appeal from an order refusing to set aside a judgment. The judgment was entered on tbe 10th of June, 1858, upon an affidavit of due service of summons and complaint, and of no appearance or answer witbin tbe time for answering; but it was also stated in tbe affidavit, that on tbe 4th of June, 1858, fifty-nine days after service of complaint, an answer was left in tbe office of tbe plaintiff's attorneys, in tbeir absence, wbicb they immediately returned because it was not served in time. Tbe summons and copy of complaint were served on tbe defendant in person, April 6th, 1858. In March, 1859, tbe defendant, upon affidavits that tbe period for answering bad been extended from time to time by tbe plaintiff’s attorneys, that tbe answer bad been served within tbe time so extended, and that no notice of an application for judgment or for tbe assessment of damages bad ever been given to bim or Ms attorney, obtained an order from tbe circuit judge staying all proceedings upon tbe judgment until tbe further order of tbe court. In July, 1860, upon affidavits, stating tbe further facts, that when tbe plaintiff’s attorneys returned tbe defendant’s answer they gave as a reason that it was no answer, or a frivolous one, and that no notice bad ever been given of any motion to set it aside as frivolous, tbe defendant obtained an order tbat the plaintiff show cause on &c., wby tbe judgment should not be set aside. On tbe bearing, an affidavit of one of tbe plaintiff’s attorneys was read, stating tbat no appearance was entered or answer put in by tbe defendant until tbe 4tb of June, 1858, and tbat tbe answer was returned to tbe defendant’s attorney immediately, “ for tbe reason tbat it was not served witbin tbe time required by tbe summons.” Tbe motion to *201set aside tbe judgment was overruled, and tbe defendant excepted to tbe decision, and appealed.

*Bennett, Oassoda/y ds Gibbs,*for appellant:

Tbe affidavit of tbe plaintiff’s attorney does not *deny*that tbe time for answering bad been extended and that tbe answer was filed witbin tbe extended time. Tbe service witb-in tbe time required by tbe summons may be waived by parol. 1 Monell’s Pr., 166. Tbe affidavit of tbe defendant’s attorney shows that tbe answer was returned because it was frivolous, and though tbe plaintiff’s attorney states in bis affidavit that be returned it because not served in time, be is careful *not*to say that be stated that to tbe defendant’s attorney as tbe reason for returning it. If tbe answer was frivolous, it could not be disregarded as a nullity (7 How. Pr. R, 36), but tbe plaintiff should have applied for judgment under E. S., chap. 132, sec. 22. *Foote vs. Carpenter,*7 Wis., 396. Tbe action was not on a written instrument for tbe payment of money only, and judgment without notice of tbe subsequent proceedings in tbe cause was irregular. 10 How. Pr. R., 103.

*J. A. Sleeper,*for respondent:

It was tbe duty of tbe defendant to move at tbe earliest opportunity after bis answer was returned, for leave to file and serve it, if be was entitled to such leave; and be could not sleep upon bis right more than two years and then ask to be relieved from tbe consequences of bis own neglect. 6 Wis., 164; 1 How. Pr. R, 54, 63, 93, 245; 11 id., 91, 116; 16 id., 129. Important rights may be affected now by setting tbe judgment aside. 7 Wis., 595. By tbe R. S., 1849, and by tbe R. S., 1858, tbe motion to set aside a judgment must be made witbin one year; this motion was therefore too late.’ 6 Wis., 164; 9 How. Pr. R, 35; 16 id., 164. Tbe defendant’s attorney was not entitled to notice of application for judgment or assessment of damages, not having appeared witbin tbe time to answer. There was no assessment of damages to be made; judgment was properly entered for tbe amount demanded in the complaint.

November 2.

*By the Court,*

Paine, J.

Tbe order refusing to set aside *202tbe judgment must be affirmed, for tbe reason that tbe motion was made too late. Tbe judgment was entered on tbe lOtb of June, 1858. In March, 1859, tbe defendant obtained an order staying proceedings, and then slumberedj until July, 1860. This is not sucb diligence as tbe law requires in those who honestly desire to be relieved from a judgment which has been improperly entered against them. *Bliss vs. Treadway,*1 How. Pr. R., 245; *Patterson vs. Graves,*11 id., 91; *Jones vs. Slate Company,*16 id., 129; *Sanderson vs. Dox,*6 Wis., 164.

Tbe order is affirmed, with costs.