Candee v. Ogilvie

5 Duer 658

Opinion

Bosworth, J.,

(with the concurrence of the other Justices,) held, as above stated. He held, that $12 could be allowed under sub. 1 of section 307, in those actions only, in which an application for judgment, when a defendant fails to answer, must be made to the court. In all others, only $7 can be allowed whether an answer or demurrer is, or is not, interposed.

That the plaintiff could have obtained a judgment without noticing the action for trial or placing it on the calendar. And having, in fact, obtained a judgment, on a motion made to a Judge out of court, under section 247 of the Code, he was not at liberty to take the ground that the cause had been necessarily placed on the calendar, whatever might have been his rights, if it had been called in its order on the calendar, on due notice of trial, and a verdict had been taken, then before the court, or a jury.