Johnson v. Jackson, ex dem. Rowan

1 Wend. 284

• Court: New York Supreme Court
• Decided: October 15, 1828
• Status: Published

Opinion

By the Court,

Savage, Ch. J.

The entry of the judgment as in case of nonsuit, on the 16th May, for the non-payment of the costs, the same having been paid on the 14th May, was irregular, although the defendant, on a motion to set aside such judgment, under the circumstances of the case, would have been excused from the payment of costs. The agent of the defendant’s attorney, who had demanded the costs, received and transmitted them to his principal, and they were received at Ogdensburgh on the 20th May; and though the attorney states that he had not accepted them, he omitted to give notice to the plaintiff of his determination not to receive them. He did not apprise the plaintiff of his having entered judgment as in case of non-suit against him, until he arrived at Ogdensburgh, in July, prepared to try his cause, and even then he did not returns the costs, or offer to do so. If his judgment had been regularly entered, his neglect to give notice of his determination not to receive the costs, retaining them under his control from May till July, and even then omitting to pay them back to the plaintiff, would be considered a waiver of the judgment. As a matter of right, therefore, the defendant cannot claim to set aside the judgment of the plaintiff; and he appeals with an ill grace to the favor of the court. The defendant’s attorney, who, it appears, is the party in interest, and his witness, were in court when the trial was had, and refused to appear. He stated his willingness to have the cause tried on the second day of the circuit, and has not shewn why he was not prepared on the first day. After the trial, he boasted that if he was wrong, the court would relieve him on payment of costs, and taunted the plaintiff as to the expense to which he had been, and would be subjected, in the prosecution of his suit. The defendant has evinced a disposition to vex and harrass the plaintiff. In cases of this kind, the court will be astute to place a party in fault, and they will not relieve him on the ordinary terms, where the rules of practice are thus manifestly sought to be perverted to the purposes of oppression, especially in a case like this, where, if the party has rights, he can assert them by the commencement of a suit on his part. The defendant has therefore misjudged, in supposing that the court would relieve him on payment of costs. The motion is denied, with costs.