Gilliland v. Morrell

1 Cai. Cas. 153, 1 Cole. & Cai. Cas. 212

• Court: New York Supreme Court
• Decided: August 15, 1803
• Status: Published

Opinion

Per Curiam.

This is an application to set aside a verdict. There are many facts stated. With respect [*155] to the entry of *the rule for setting aside the judgment as in case of nonsuit, there may be some doubt. The clerk finds no rule entered, but as there was a stipulation filed, the court take it for granted that it was on the usual terms. It is necessary, however, that in all cases of stipulation, there should be a demand of costs; this demand should be accompanied with a copy of the rule, and if the costs be not paid in twenty days after, then the party may enter up judgment of nonsuit, and take the effect of his application.

[1] The defendant swears that he did present a bill of costs, but does not say it was with a copy of the rule annexed; this, too, was on the agent, and not on the party, or his attorney. The defendant, therefore, has not been correct in his proceedings, and if the 'demand was not regular, the plaintiff was regular in noticing his cause for last April, and bringing it on to trial. But, admitting that in so doing he had been guilty of an irregularity, the defendant’s appearing on the trial is a waiver of all advantage to which he might otherwise have been entitled. It was decided last term, in the case of Brain v. Rodelicks and Shivers,(a) that if a party appear, he waives all irregularity. But it has been shown there was not any; and if there was, the conduct of the defendant has placed the case in the same situation as if there was not. The plaintiff, therefore, is regular. Against this is read an affidavit of merits; on such an affidavit the court will not set aside a regular verdict.. There is no irregularity; the defendant appeared, (b) and has shown no excuse why he did not defend ; for if his witness could not have been obtained, the court, on the common affidavit, would have put off the trial. The defendant must take nothing by his motion.

Motion denied. (b)

Lewis, Ch. J. absent.

See Lowne v. Roose, 6 Cow. 394; Shattuck v. Chamberlin, 4 Id. 14. Chadderton v. Barkers, 6 Wen. 521; Howard v. M'Knight, 25 Wen. 688.

S. P. See Day v. Wilber, 2 Caines’ Rep. 134.

The rule as to paying of costs seems to be, that when a pari ■» asks a favor of the court, which is granted on payment of costs hy Mm, he must seek the opposite side and tender the costs instanter. Pugsley v. Van Alen, 8 Johns. Rep. 352. When the application is for a right, which is allowed, and costs ordered to be paid by the opposite parrty, they must be demanded with a copy of the rule annexed. When the application is for a right, which is refused, on payment of costs, &c., by the other party, they must be souglii ss in the case in the text.