Coffin et al. v. Kemp et al., 4 Greene 119

Opinion by Greene, J. Petition filed by Jessee Kemp and Presly Doggitt against T. C. Coffin, Sarah Coffin and John Myers. Decree against T. C. and S. Coffin by default. It appears that, at the time the decree was ordered, the defendants had a motion pending for further time to answer, which does not appear to havé been disposed of by the court. And it is also inferable from the record that the separate answers óf T. C. and S. Coffin- were on file before the decree was rendered.

It appearing, with sufficient certainty, that there was a motion pending upon which there was no order made, and that answers were filed before the decree by default was rendered, the decree must be so far reversed as to set the default aside. A. Hall, for appellant. Geo. G. Wright and J. 0. Knapp, for appellee. At law, a judgment by default cannot be legally entered, when there is a plea on file in the case. Brown v. Hollenbeck, 2 G. Greene, 318. The same rule should obtain in equity, when a material motion or an answer is pending. Decree reversed.