The declaration was held bad on demurrer. The order allowed the plaintiff fourteen days, or until October 15, 1930, to file an amended declaration and allowed defendants fifteen days after service of a copy of the amended declaration "to plead as they may be advised thereto". The amended declaration was filed on October 8th and a copy of it delivered the same day to defendants' counsel of record.
On October 28th, not within the fifteen days allowed defendants to plead, they filed a motion for compulsory amendment which contained no merit whatsoever either as a pleading of any description or as a motion to secure a clearer statement of the case in the declaration to avoid prejudicing the defendant or to embarrass him or delay the fair trial of the action. Section 4296 C. G. L. 1927.
A month afterward plaintiff moved the court for a default for failure to plead as the order required. The court granted the motion and entered the default. On January 3rd following defendants sought to have the default opened and moved the Court to that end. They also sought by motion to be permitted to file pleas to the declaration. Both motions were denied. The pleas tendered were very lengthy containing many averments in no wise constituting a defense to the action on the promissory note and was supported by an affidavit that the "statements made therein are true". The court entered judgment for the plaintiff on February 26, 1931.
Nearly six months thereafter defendants took a writ *Page 594 of error and made it returnable one month and seventeen days thereafter. In this state of case I perceive no error in the court's action nor any abuse of discretion. The motion for compulsory amendment was not a pleading and the pleas tendered constituted no defense to the action on the promissory note. I therefore think the judgment should be affirmed.
ON PETITION FOR REHEARING. Opinion filed May 11, 1932.