The appellee, who was the plaintiff, sued Walpole and Statesman upon a note for the payment of 427 dollars. At an adjourned term of said court held on the 19th of December, 1860, the defendant's were duly called and defaulted, and judgment by default regularly entered against them. As no motion was made to set aside the default, this *82appeal is not properly before us. 9 Ind. 236; Harlan v. Edwards, 13 Ind. 430, 453;—“where a judgment is taken by default, a motion to set aside the default must precede an appeal to this Court.”
T. H. and R. L. Walpole, for the appellants. William R. West and Henry Craven; for the appellee.But it is insisted that the Hancock Circuit Court had no right to hold the adjourned term, and that the proceedings are therefore void. This is a mistake. We have a statute expressly authorizing the holding of such terms. Acts 1855, p. 70»
The judgment is affirmed, with five per cent, damages and costs.