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Arden v. Rice

1 Cai. 498 Court N.Y. Sup. Ct. English

Decision Majority — Per Curiam. · Dissent — *626 Spencer, J.

Contents
p. 625
Arden and Close against Rice, White and Townsend.

Headnote

If the court be satisfied a demurrer is put in merely for delay, aftd the opposite side has noticed the demurrant for argument, who does not appear, the demurrer will be overruled, and a rule for judgment ordered, the party obtaining it stating himself ready to open the rule if good cause of demurrer, or merits, be shown. Judgment may be entered upon a cognovit m vacation.
This cause had been noticed by the plaintiffs for argument, at the last term, on a general demurrer filed by the defendants to the declaration; the court had, on the statement of the plaintiffs’ counsel that the demurrer was merely for delay, overruled it, and granted a rule for judgment, the *counsel pledging himself to open [*499] the rule any day on an affidavit of good cause of demurrer,-or of merits. On service of the rule for judgment, the defendants gave a cognovit, on which the plaintiff entered up his judgment in the last vacation.
Foot
moved to set aside the judgment, contending that it could not be entered but in term.
Some little variance of opinion existing on the bench respecting the practice, on this point, it stood over till the last day of term, when the court thus decided:

By the 8th rule of April, 1796, judgment, after a default entered, may be entered at any time after 4 days in term have intervened. The rule of July term, 1796, ordering all rules for judgment to be entered in term, and not in vacation, was abolished in April term, 1799, and restored the first rule. There is no good reason why four days in term should be given in this case to the defendants, any more than on a warrant of attorney to confess judgment. The defendants take nothing by their motion.

dissented, on the ground that the practice had been different.[1]

Motion denied.

(a) (a) Judgment may be entered in vacation as of the preceding term on a warrant of attorney given in that vacation to enter up judgment on a bond payable immediately. King v. Shaw, 3 Johns. Rep. 142 . A warrant of attorney should also authorize the entry as of the preceding term, when given in vacation. But except in the above cases, neither interlocutory nor final judgment can be entered in vacation. Hogeboom v. Genet, 6 Johns. Rep. 325 . To enter a rule nisi for judgment on the 4th day of term after a verdict, is no violation of an order to stay proceedings. Hackley v. Hastie & Patrick, 3 Johns. Rep. 253 . It may be entered on any day in term. Rose v. Rock, 6 Johns. Rep. 330 .