The claim of the defendant is that there was no appearance on his part by Adams as required by section 421 of the Code, and that, therefore, his appearance by -&-was sufficient, and he was not in default. Adams was in fact defendant’s attorney in the action. He signed the undertaking as such attorney. Plaintiff’s attorney accepted and treated him as such, and when íre received notice of appearance from-& ■-he notified them that Adams had already appeared in the action, and they acquiesced in that position taken by him by making no protest or objection thereto, and by retaining their returned notice of appearance. They then procured the consent of Adams to their substitution, and had themselves, by a formal order, substituted, and thereafter made no further demand for a copy of the complaint.
Even if Adams’ appearance was not regular and did not bind the defendant as a general appearance in the action, yet we think the conduct of his attorneys was such as to waive their first appearance and their demand of complaint; and after their substitution, in order to entitle themselves to a copy of the complaint, they should have renewed their demand. Hence we think the plaintiff’s attorney had the right to treat the defendant as in default, and the judgment was regularly entered.
Whether the judgment should be vacated and the default opened, therefore, rested in the discretion of the supreme court, and we have no jurisdiction to review the exercise of that discretion.
The appeal should, therefore, be dismissed, with costs.
All concur, except Rttgeb, Oh. J., absent.