Gilliland v. Morrell — 1 Cai. 153

Majority

p. 211

Gilliland against Morrell.

Headnote

All irregularities are waived by a defendant if he appear on trial. On judgment for non-suit nisi, the defendant should make a demand of his costs, with a copy of his rule annexed; and if not paid in 20 days, he may enter his judgment; if he do not so, the plaintiff will be regular in noticing for trial.

Van Vechten moved to set aside the verdict in this cause, and grant a new trial, on an affidavit which stated, that in October, 1802, a motion was made on the part of the defendant for judgment as in case of non-suit; which, no one appearing to oppose, was granted as of course. That the judgment, thus taken, was, in the same term, set aside by the plaintiff, on the usual .terms of stipulating to try the next circuit, and paying the costs of not proceeding to trial. That the stipulation was entered into, the costs taxed, and demanded, but not paid, and now continued unsatisfied; that, therefore, and as the defendant’s only witness could not be found, he did not attend by himself or attorney at the last circuit in April. That the defendant

p. 212

had a good and substantial defence, as informed by hia counsel, which he verily believed to be true; that on the merits, the plaintiff could not recover, and that a material witness was wanting, without w-hose testimony the defendant could not proceed to trial, but which he could procure by the next circuit.

Woodworth, contra,

produced a certificate from the clerk of the circuit court, that the trial of the above cause was had on the eight day of April last, when Mr. Yan Yechten appeared for Mr. Fisk, attorney for the defendant. On thin he contended every irregularity was waived, and the verdict must stand, otherwise the chance of a verdict might be taken at any time after a little advantage obtained, and in case of a want of success, a motion to set it aside resort ed to.

This is an application to set aside a verdict. There are many facts stated. With respect [*155] to the entry of *the rule for setting aside the judgment as in case of nonsuit, there may be some doubt. The clerk finds no rule entered, but as there was a stipulation filed, the court take it for granted that it was on the usual terms. It is necessary, however, that in all cases of stipulation, there should be a demand of costs; this demand should be accompanied with a copy of the rule, and if the costs be not paid in twenty days after, then the party may enter up judgment of nonsuit, and take the effect of his application.^[1] The defendant swears that he did present a bill of costs, but does not say it was with a copy of the rule annexed; this, too, was on the agent, and not on the party, or his attorney. The defendant, therefore, has not been correct in his proceedings, and if the 'demand was not regular, the plaintiff was regular in noticing his cause for last April, and bringing it on to trial.

[1] [1] See Lowne v. Roose, 6 Cow. 394 ; Shattuck v. Chamberlin, 4 Id. 14. Chadderton v. Barkers, 6 Wen. 521; Howard v. M'Knight, 25 Wen. 688.

p. 213

But, admitting that in so doing he had been guilty of an irregularity, the defendant’s appearing on the trial is a waiver of all advantage to which he might otherwise have been entitled. It was decided last term, in the case of Brain v. Rodelicks and Shivers,^[2] that if a party appear, he waives all irregularity. But it has been shown there was not any; and if there was, the conduct of the defendant has placed the case in the same situation as if there was not. The plaintiff, therefore, is regular. Against this is read an affidavit of merits; on such an affidavit the court will not set aside a regular verdict.. There is no irregularity; the defendant appeared,^[3] and has shown no excuse why he did not defend ; for if his witness could not have been obtained, the court, on the common affidavit, would have put off the trial. The defendant must take nothing by his motion.

Motion denied.^[3]

Lewis, Ch. J. absent.

(a) (a) S. P. See Day v. Wilber, 2 Caines’ Rep. 134 .

(b) (b) The rule as to paying of costs seems to be, that when a pari ■» asks a favor of the court, which is granted on payment of costs hy Mm, he must seek the opposite side and tender the costs instanter. Pugsley v. Van Alen, 8 Johns. Rep. 352 . When the application is for a right, which is allowed, and costs ordered to be paid by the opposite parrty, they must be demanded with a copy of the rule annexed. When the application is for a right, which is refused, on payment of costs, &c., by the other party, they must be souglii ss in the case in the text.