Van Schoyk v. Jacoby

1 How. Pr. 47

• Court: New York Supreme Court
• Decided: December 15, 1844
• Status: Published

Opinion

Per Curiam.

The defendant is not entitled to a rule to assign errors until the writ of error has been returned and filed—until that is done the Court of Review does not become possessed of the cause. In this case the writ of error was never returned; and yet the defendant has ruled the plaintiff to assign errors, entered his default and perfected a judgment of non pros. This was clearly irregular, and the judgment must be set aside. The defendant had reason to believe the writ had been returned, but that only goes to the question of giving costs on this motion. So too the alleged delay of the plaintiff in moving may go to the question of costs, but the case is not put that the motion can be wholly denied on the ground of delay. There is a further objection to the judgment: It was entered after the matter had been settled by the parties; and here a question is made about the attorney’s lien for costs, or his claim as assignee of the original judgment. He says, the judgment was assigned to him, but does not say when ; it is a little uncertain on the papers whether he means to assert any thing more than a lien. Nothing is decided in relation to this branch of the case, should it come up again the facts will probably be more clearly set forth. Under the special circumstances of the case no costs are ordered.

Decision.—Ordered that the default of the plaintiff in error for not assigning errors and all subsequent proceedings on the part of defendant in error, including the judgment of non pros, be set aside for irregularity.