Dean v. Susade

37 N.J.L. 50

• Court: Supreme Court of New Jersey
• Decided: February 15, 1874
• Status: Published

Opinion

The opinion of the court was delivered by

Bedle, J.

This case was referred under the statute, at the circuit, and a dissent entered. The postea and report were filed November 11th, 1873, the same being in favor of the defendant. The plaintiff, at the same term, demanded a trial by jury, and filed his exceptions according to the statute. The ease was regularly noticed by the plaintiff for trial at the succeeding Hudson circuit, and hot moved. Whereupon the defendant applies for a dismissal of the exceptions, a vacation of the rule for a jury trial and judgment upon the postea and report of the referee. The affidavit produced by the plaintiff does not disclose a sufficient reason for not proceeding with the trial before the circuit. Under these circumstances, the defendant is entitled to his motion. A rule for judgment nisi had been obtained by the defendant upon the postea, at November Term, and the demand for the jury trial operated as a vacation of that rule, the same as a rule to show cause in an ordinary case of judgment nisi. The plaintiff not having prosecuted with due diligence, the true practice is to dismiss the exceptions, to vacate the rule for a venire, and to confirm the report and enter a judgment de novo, the same as when a rule to show cause has been dismissed in an ordinary case. Upon entering judgment the defendant would be entitled to tax the costs of all proceedings subsequent to the filing of the postea and report of the referee.