Roosevelt v. Dean — 3 Cai. 105

Majority

p. 105

James Roosevelt against Daniel S. Dean.

Headnote

All objections to the bringing on a motion must be made before the grounds of it are entered into: if not, they will be considered as waived.

The court will infer that what ought to be inserted in an affidavit, and does not appear, did not exist.

AFTER a lengthy and desultory argument, the counsel for the plaintiff took an exception to the titling the notice of motion, and affidavit on which founded.

All objections of this sort ought to be submitted as preliminary questions. We are not to sit here, have the grounds of motion laboriously investigated on a long discussion, and then have a matter of mere form pressed upon us. The entering into the argument is a waiver of all objections against its coming on.

*** The court in this cause said, that when an affidavit does not state that which ought to be alleged in support of the motion, the presumption is, it could not be asserted, and the inference of the bench will be against the party guilty of the omission.