Whitney v. Camp

3 Johns. 86

• Court: New York Supreme Court
• Decided: February 15, 1808
• Status: Published

Opinion

Per Curiam.

This is a motion, made on the part of the defendants, to set aside the scire facias, and all subsequent proceedings. On a consideration of the facts, wc are of opinion, that the motion must be denied. The proceedings on the scire facias were regular. The defendants, as tertenants, were duly warned, and suffered judgment to pass against them by default. The return to the scire facias by the sheriff of the county, where the lands lie, states them to be “ tenants of the lands in his bailiwick, whereof Crosby was seised, on the day of the rendition of the judgment in the original suit.” If the rule be, as stated in the books, that the heir and the personal representatives of Crosby ought to have been previously warned, yet the tertenants ought to have availed themselves of this omission by plea, and they come too late, after judgment by default. (2 Saunders, by Williams, p. 9. note 8. and 10.) They are also equally too late to-be heard upon the allegation, that they were not such tertenants as ought to have been summoned upon the scire facias. There is the more reason for denying the motion, as there are no merits disclosed, or averred by the defendants, either in behalf of themselves-, or of the legal representatives of Crosby ; and from the affidavit of the attorney of the defendants, it appears, that a previous scire facias against the executors, or the heirs of Crosbyj would have been unavailing and fruitless, for it is stated, that neither of them have resided within this state, since January, 1806.

Some circumstances are mentioned, in the affidavits on the part of the defendants, relative to the original judgment, but as the motion before the court does not apply to that judgment, it becomes unnecessary" to take notice of those suggestions^,

Rule refused,