There can be no appeal from a judgment entered upon default. Therefore, in so far as this appeal purports to be from the judgment, it will be dismissed. On the 20th of October, 1910, the defendants’ answer was filed, and defendants made an application for an adjournment for 90 days. An affidavit of Eelice Cunti, one of the defendants, was presented to the court, which contained a sufficient affidavit of merits, and set forth that it was necessary for the defendant to procure certain documentary evidence from Italy, which had been sent for, but which had not arrived, and showing that the evidence was material and necessary for the defense of the action. There was also presented an undertaking pursuant to section -194 of the Municipal Court act. The facts set forth in the affidavit were not denied. The application was denied, and plaintiffs proceeded to take an inquest. Defendants promptly moved to open the default.
The defendants evidently intended to defend the action in good faith. The application for an adjournment should have been granted, and the facts that the defendants seek to prove by the documentary evidence not having been denied by the affidavit submitted by the plaintiffs in opposition to the motion, the jüdgment entered on the default should have been opened and set aside, in order that the defendants may have their day in court.
Order reversed, with costs, and motion to open default granted, and judgment vacated and set aside. Appeal from judgment dismissed. All concur.