This is Part 3 of a multi-part case. We recommend you read about Oswald v. New York I and II before reading ahead.

---

In a nutshell, here’s where we left off.

The Oswald saga began when Eleazer Oswald petitioned the Supreme Court for relief on behalf of his deceased father-in-law, the influential and troublemaking publisher John Holt.

Oswald argued the State of New York failed to pay Holt properly when he was alive.

The State of New York didn’t respond to the lawsuit because, in its view, a private citizen didn’t have the right to sue a state in federal court.

Nonetheless, the Court ordered that the folks in New York be served with Oswald’s petition by the first day of the Court’s next term so the case could proceed.

That “next term” is upon us in our chronology.

We turn now to Oswald v. New York III.

You can read the super short entry for this case here.

---

Oswald v. New York III: Hunting Ghosts

It’s like this.

When the Court opened up for business in February of 1793, the State of New York was nowhere to be found.¹ Despite the Court’s order in Oswald II, which made clear the State of New York was to be served in time for the Court’s February 1793 session, New York was M.I.A.²

Oswald’s lawyer wasn’t going to sit around and wait. Determined to vindicate his client’s rights, he asked the Court to enter default judgment against the State of New York if it didn’t show up by the Court’s next term in August.³

The Court granted Oswald’s request, ruling, “Unless the State appears by the first day of next Term to the above suit, or shew[sic] cause to the contrary, judgment will be entered by default against the State.”⁴ So, the Court was demanding New York show up on the first day of its August 1793 session, or face default.

This ruling, ladies and gentlemen, teaches us why people and entities can’t just ignore lawsuits.

If a person or entity gets hit with a lawsuit and that person or entity doesn’t respond to the lawsuit in court, the party who filed the lawsuit can ask for a nifty thing called default judgment.

Asking the court to enter default judgment is basically the equivalent of asking the referee to decide that your team won the game because the other team never showed up.

So, if you sue a party and that party ghosts you, you can ask the court to enter default judgment against the ghosting party.

Do We Need to Call Zak Bagans or Something?

Having default judgment entered against you isn’t some symbolic, inconsequential thing like being put on Santa’s naughty list. It’s serious business. If the court agrees to enter into default judgment against the ghosting party, the court is ruling that the filing party is entitled to a certain sum of money from the ghosting parties.

Default judgment has the same legal force as a judgment entered following a jury verdict. In other words, the result itself is practically just as good as winning at trial.

If the court enters default judgment, this means the ghosts are going to owe money even though they never put up a defense.

This is fair, I think.

Default judgment is an ancient remedy. We even see it codified in the Twelve Tables, the earliest written laws we have from ancient Rome.⁵ The laws read, “If one of the parties does not appear[,] the magistrate shall adjudge the case, after noon, in favor of the one present.”⁶

The idea behind the rule is, if courts are to have any force at all, a party shouldn’t be allowed to avoid consequences by ghosting the court. “Nah, I’m good,” is not an acceptable response to a lawsuit. You have to respond.

Makes sense, right? If participation in a lawsuit were voluntary, why would a defendant ever show up to court and put himself in peril?

So, if someone chooses not to participate in civil society when called to answer in the judicial system, he will not be shielded. If a party wants to hide, he can try…at his peril.

As my favorite fiction author Robert Jordan writes, “Take what you want, and pay for it.”⁷

You mean to tell me you can file a lawsuit and then get paid because the other guy doesn’t respond?

It’s actually not so easy to get a court to enter default judgment against ghosting parties.

First, the filing party has to make every effort to serve the ghosting parties before he asks the court to default them. That takes time. And you’ve got to document all of your efforts.

If the ghosts haven’t responded because you sent the process server to the wrong house…that’s not going to fly. If they haven’t responded because you only tried serving the ghosts once, and didn’t succeed…not going to fly. You need to have made diligent, documented efforts to deliver the pleadings to the ghosts before you have hope of defaulting them. It’s only fair.

Second, if the ghosts suddenly come out of the woodworks in the midst of your efforts to default them, the court may forgive the ghosts and you’ll be back at square one, having to litigate the case after a long delay as if nothing happened.

(The court doesn’t like to default parties, especially if the ghosts reveal themselves, transforming from vapor to flesh.)

Third, even if the court enters default judgment and awards the filing party the money he is asking for, the filing party will then have to deal with the headache of trying to collect the sum from ghosts, which can be tough where the ghosts are particularly elusive. (Although, when your lawyer is a bloodhound, finding the ghosts and their assets becomes something of a sport.)

In the case of Oswald III, the Court gave the State of New York just one more chance to avoid the fate of default judgment.

All New York had to do was show up at the Court’s next term in August of 1793. Will it?

Stick with us to find out. Don’t miss the next part of our series. Subscribe here to learn the law, without the Latin.

Remember, this is Con Law, Chronologically, so we have to look at a couple more cases before we can turn our attention back to the Oswald saga.

Studying this case for class? I offer 1-on-1, virtual law school tutoring. Learn more here.

Here’s a Bluebook cite for ya – Johnathan J. Azar, Here’s Why You Can’t Just Ignore a Lawsuit: Oswald v. New York III (1793) (Mar. 26, 2026) 

FOOTNOTES

1. Oswald v. New York, 2 U.S. (2 Dall.) 415 (1793) ↩︎
2. Id. ↩︎
3. Id. ↩︎
4. Id. ↩︎
5.  The Twelve Tables, The Avalon Project: Documents in Law, History and Diplomacy, Yale Law School (2008), https://avalon.law.yale.edu/ancient/twelve_tables.asp (accessed Mar. 26, 2026). ↩︎
6. Id. at Tablet I, Section 8 ↩︎
7. Robert Jordan, The Fires of Heaven ch. 15 (Tor Books 1993). ↩︎

Disclaimer: All content on Lex Sans Latin is provided for educational and informational purposes only, and does not constitute legal advice. Nothing on this site creates an attorney–client relationship. If you need legal advice, please consult an attorney.

This blog may include quotations or excerpts from judicial opinions, statutes, scholarly articles, books, and other primary or secondary sources. Such materials are used for purposes of commentary, criticism, teaching, scholarship, and research in accordance with the fair use doctrine under U.S. copyright law (17 U.S.C. § 107). All cited materials are attributed to their original sources to the extent reasonably possible.

Any tutoring or instructional services offered are educational in nature and are not a substitute for legal advice or legal representation.