The court before which an action is pending has power to permit the defendant to file out of time the affidavit of defence required by Gen. Laws R.I. cap. 239, § 14. A defendant may be heard on the question of damages in a defaulted case.
PER CURIAM.
We are of the opinion that the court below erred in holding that it had no power to permit the defendant to file out of time the affidavit of defence required by Gen. Laws R.I. cap. 239, § 14. Gen. Laws R.I. cap. 246, § 2, gives the court power to set aside a default at any time within six months, to reinstate the case or make a new entry, and to take other proceedings. It would be of little avail to a defendant to have a default set aside and the case reinstated unless he could be permitted to make a defence, which he could not do without having been allowed an extension of time to file his affidavit of defence.
It has always been the practice to permit a defendant to be heard on the question of the assessment of damages in a defaulted case.
Exceptions sustained, and case remitted to the District Court of the Fourth Judicial District for further proceedings.