Harden v. Woodside

New York Court of Common Pleas

Harden v. Woodside

2 E.D. Smith 37

DecidedMarch 15, 1851

StatusPublished

This text of 2 E.D. Smith 37 (Harden v. Woodside) is published on Counsel Stack Legal Research, covering New York Court of Common Pleas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Harden v. Woodside, 2 E.D. Smith 37 (N.Y. Super. Ct. 1851).

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Opinion

By the Court. Woodruff, J.

The grounds of appeal are the same in each of the above cases, and they are submitted and disposed of together.

Adjournment was had in each from the 24th of October to the 24th December, to enable the defendant to obtain the testimony of foreign witnesses, under a commission.

On the 24th December, the plaintiffs, with their witnesses, appeared. The defendant did not appear, and the plaintiffs went to trial. In each action one witness was examined on behalf of the plaintiffs, and the case was submitted to the court for its determination.

On the 26th, and before judgment was entered, the defendant’s attorney applied, ex parte, to have the case opened, and for further time to procure the return of the commission, but the court refused to open the case.

The excuse given by the defendant’s counsel for his nonattendance, on the 24th, was, that being engaged in another court, he “ sent a clerk to see if the plaintiff was present, and on his return the clerk informed deponent that the causes were adjourned to the 26th.” Whether there was any foundation whatever for that information does not appear. It is not shown that the clerk made any application to the judge for an adjournment, or made inquiry of the judge or clerk [38]*38of the court, or even of the plaintiff or his attorney. If he received any such information, it does not appear from whom, —whether there was any thing to warrant the messenger in making such a report.

Had an application been actually made to the court on the day of tidal, while the plaintiffs and witnesses were present, and the court had unreasonably refused to adjourn the trial, there might have been some ground for asking this court to interfere. But the court had no power to open the case for further hearing after the day of trial is passed, and the case has been submitted by the plaintiff, and the witnesses have departed.

Judgment affirmed, with costs.

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By the Court. Woodruff, J.

The grounds of appeal are the same in each of the above cases, and they are submitted and disposed of together.

Adjournment was had in each from the 24th of October to the 24th December, to enable the defendant to obtain the testimony of foreign witnesses, under a commission.

On the 24th December, the plaintiffs, with their witnesses, appeared. The defendant did not appear, and the plaintiffs went to trial. In each action one witness was examined on behalf of the plaintiffs, and the case was submitted to the court for its determination.

On the 26th, and before judgment was entered, the defendant’s attorney applied, ex parte, to have the case opened, and for further time to procure the return of the commission, but the court refused to open the case.

The excuse given by the defendant’s counsel for his nonattendance, on the 24th, was, that being engaged in another court, he “ sent a clerk to see if the plaintiff was present, and on his return the clerk informed deponent that the causes were adjourned to the 26th.” Whether there was any foundation whatever for that information does not appear. It is not shown that the clerk made any application to the judge for an adjournment, or made inquiry of the judge or clerk [38]*38of the court, or even of the plaintiff or his attorney. If he received any such information, it does not appear from whom, —whether there was any thing to warrant the messenger in making such a report.

Had an application been actually made to the court on the day of tidal, while the plaintiffs and witnesses were present, and the court had unreasonably refused to adjourn the trial, there might have been some ground for asking this court to interfere. But the court had no power to open the case for further hearing after the day of trial is passed, and the case has been submitted by the plaintiff, and the witnesses have departed.

Judgment affirmed, with costs.

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Bluebook (online)

2 E.D. Smith 37, Counsel Stack Legal Research, https://law.counselstack.com/opinion/harden-v-woodside-nyctcompl-1851.