Potter v. Davison

8 Abb. Pr. 43

• Court: New York Supreme Court
• Decided: October 15, 1858
• Status: Published

Opinion

Davies, J.

The inquests were taken at the September circuit, 1858. The plaintiff did not notice the causes for trial at that circuit: the defendant did notice them. They were called on the 21st of September, and on plaintiff’s motion, set down for Thursday the 23d. On that day being reached on the day callendar, they were called, and no one appearing on the part of the defendant, an inquest was taken in each case.

The question presented for decision is, can the plaintiff proceed to take an inquest at a circuit at which he has not noticed the cause for trial, and when he has been called there only on the defendant’s notice ?

Rule 29 authorizes inquests only to be taken at the opening of the court, at any day after the first, when the intention to take the inquest is expressed in the notice of trial.

In the present case, the party taking the inquest has given no notice of his intention so to do, and has given no notice of trial.

It is very clear to my mind that he could not do so in the ab-sense of such notice.

It was urged on the argument that the case of Rey a. Thompson (8 How. Pr. R., 253) was an authority to sustain the practice in these cases.

But an examination of that case will show, that it decided only that when the plaintiff neglects to notice a cause for trial, according to the course and practice of the court—the defendant on an affidavit showing that the same was at issue, and that at the term for which it ought to have been noticed, younger issues had been tried—the defendant might move to dismiss the complaint. But the court held in that case that it was only a judgment of dismissal that could be founded upon such a motion. The court also held that when a defendant claims affirmative relief, legal or equitable, the duty of an actor, in bringing the cause to trial, devolves upon him.

In these cases, the plaintiff, to entitle himself to be an actor and to move on the causes, must have noticed them.

The defendant was under no obligation to wait the whole circuit to see if the plaintiff would move the causes, when he had not noticed them. The defendant, by noticing them, compelled the plaintiff to watch the causes; or if he did not answer, they might be dismissed. But the plaintiff could take no affirmative action, unless he noticed the case for trial on his own behalf.

I have consulted my brethren, and they concur in the results of this opinion, and hold that the inquests taken in this cause were irregular, and must be set aside.

They are accordingly set aside, but without costs.