Kirkpatrick, C. J.
You are not entitled to judgment; you do not state that you served the rule upon tho defendant’s attorney.
Ewing. The defendant’s attorney was in court at the time the motion was made, and knew of it.
Per Curiam.
We are all of opinion, that a service of the rule is necessary, and even if the defendant’s attorney is in court when the motion is made. We cannot enter into an examination, whether he was in court or not. Besides, he might have been engaged at the time, and not have heard it. Motion denied.