Radley v. Shaver

1 Johns. Ch. 200

• Court: New York Court of Chancery
• Decided: July 1, 1814
• Status: Published

Opinion

The Chancellor.

A regular decree on the merits cannot be set aside upon motion. The case in 1 Ves. jun. 93. is to this point; and there is no irregularity in this case charged on one side, but what is denied on the other. Nothing appears but the grossest neglect of duty, by the defendant’s solicitor, and a regular, but mostindulgent conduct on the part of the solicitor for the plaintiffs. The examination of witnesses after publication had passed, was at the instance, and with the eonsentofthe defendant’s solicitor, and as a special indulgence to him. From the case of Floyd v. Nangle, (3 Atk. 568.,) it seems that the course to set aside a decree, for surprise and irregularity, is by petition ; but here is no irregularity to be admitted; for every act complained of, and proved, was by the consent and solicitation of the defendant’s solicitor, and he is concluded from setting it up as irregular. It would appear that the defendant has been almost deserted by the person to whom he entrusted his defence, and that the merits of this case ought to be looked into ; but this is not the mode. I should apprehend, that a petition for a rehearing would be the proper course, but on this I do not pretend to decide. It is sufficient that here is a decree regularly obtained, but not yet perfected, and that it is not to be discharged upon motion.

Motion denied, with costs.