Lee v. Consoly

26 N.J.L. 209

• Court: Supreme Court of New Jersey
• Decided: February 15, 1857
• Status: Published

Opinion

The opinion of the court was delivered by

Elmer, J.

A summons in ejectment having been issued returnable on the twenty-fifth day of April last, was duly returned with the sheriff's affidavit of service. On the ninth day of May, an order, made at chambers by one of the justices of this court, was filed, admitting the landlord to defend. No declaration having been filed, a motion was- made by counsel for the defendants, at. the November Term following, to non pros, the plaintiff. If the plaintiff was bound to declare within thirty days after the return day of the summons, it was too late to move for a non pros., the motion not having been made,'as required by the twentieth rule of court, at the next term after the failure. If the time for declaring did not expire until thirty days after the twenty days within which application might be made to admit the landlord to defend, or until thirty days after the order was filed, the motion was in time.

We think the true construction of the forty-eighth and forty-ninth sections of the new practice act (Nix. Dig. 641) is, that the plaintiff in ejectment is bound to declare within thirty days after the return day of the summons, on pain of being non prossed.

This time having expired before the commencement of June Term, the motion at November Term was too late, and must be denied.