Harwood v. Smethurst

30 N.J.L. 230

Opinion

The opinion of the court was delivered by

Elmer, J.

We think there is no necessity for the defendant to prove his notice of trial here, that having been done to the satisfaction of the court at the circuit. The regularity of the notice may however be reviewed here, as-other decisions at the circuit are reviewed, upon the application of the party who complains. This, we suppose, is the-meaning of the case of Boqua v. Ware, 1 Halst. 151.

The decision of the judge, as to the sufficiency of the notice, we think was correct. It is held in England that, if the attorney’s place of abode be unknown, the notice may be served on the party. Tidd’s Pr. 753. In this case the attorney on the record, although absent in the fulfilment of'a public duty,, kept his office in this state open, and we have no evidence that he had “ ceased to act,” within the meaning of the statute. Nix. Dig. 624, § 4.

* It would be unjust to him so to hold upon the mere ground of his absence. Had he chosen in fact to withdraw from the case, the plaintiff could have substituted another attorney; but having neglected to do this, we do not think'he should be permitted to object to a notice, of which he was in due time fully apprized.

The verdict is clearly irregular. There cannot be a judgment, as in case of a nonsuit under the statute, for hot going to trial, because in replevin the defendant may notice the cause himself; Broderick ads. Ames, 3 Harr. 297; but all the cases and books of practice show that, if the'plaintiff does not appear, in cases not within the statute, Nix. Dig. 694, § 13, the regular course is to enter a nonsuit, and then proceed to assess the damages, by means of the jury in the box or by a writ of inquiry, in pursuance of the statute. Nix. Dig. 274, § 12,† in substance the same as 21 Hen. 8, c. 19 ; Harcourt v. Weekes, 5 Mod. 77. Whether the damages thus assessed may be actual damages, as compensation for trouble and expense, we are not called on to decide. See Salk. 95.

The mode of proceeding, however, is so purely formal ¿hat we should not hesitate to follow the precedents referred to, by refusing to set the verdict aside, unless the plaintiff would consent to a nonsuit being entered, did it not appear, as well from what took place at the circuit as from the plaintiff’s affidavit, now produced, that but for the indisposition of his counsel, he had intended in good faith to produce evidence on the trial he is advised was material for his defence. The objections made to reading this affidavit we do not think well taken. This is, we think, like motions for a rule to show cause or for a nonsuit, one of those matters of course, excepted from the operation of Rule 58.

The verdict must be set aside as irregular, the costs of the -circuit to abide the event.

Rev., p. 849, § 6.

Rev., p. 975, § 27, amended.